G28.I 

N8GGfc> 


IN  CHANCERY  OF  NEW  JERSEY. 


Between 

The  Mayor  and  Aldermen 
of  Jersey  City, 

Complainant , 

and 

Patrick  H.  Flynn  and  Jer- 
sey City  Water  Supply 
Company, 

Defendants. 


>0 n Bill  for  In- 
junction, Etc. 


Opinion  of  Hon.  Frederic  W.  Stevens, 
Vice  Chancellor. 


FILED  MAY  1,  1508. 


♦Printed  for  Collins  & Corbin,  Solicitors  for  Jersey  City 
Water  Supply  Company. 


D45  , ^ , 54-H^L  u^U-t  f MzLtr  HEDRICK 


/)/  4-UL 


3ltt  (Eljattrprg  nf  Nrtu  Jprapg. 


Between 

The  Mayor  and  Aldermen  of 


Patrick  H.  Flynn  et  al., 

Defendants. 


Jersey  City, 


and 


Complainant, 


, Opinion. 

Filed  May  1, 1908. 


10 


MR.  RECORD  and  MR.  JAMES  B.  VREDEN- 
BURGH  for  complainant ; 

MR.  EDWARDS,  MR.  WILLIAM  H.  CORBIN/  20 
and  MR.  CHARLES  L.  CORBIN  for  defendants. 

Stevens,  V.  C. 

On  August  1,  1905,  the  complainant  filed  its  bill 
against  the  defendants,  Patrick  H.  Flynn  and  the 
Jersey  City  Water  Supply  Company,  praying  that 
they  might  be  decreed  to  convey  to  it  the  water 
works  constructed  by  them,  or  so  much  of  them  as 
they  were  able  to  convey,  upon  payment  by  the 
City  of  such  part  of  the  consideration  ($7,595,000)  30 

as  might  be  ascertained  to  be  due.  The  bill  further 
prayed  that  the  suits  at  law  to  recover  the  price  of 
water  that  was  being  furnished  by  the  million 
gallons  should  be  restrained. 

The  suits  were  restrained  on  equitable  terms, 
pending  the  decision  on  the  merits. 

Prior  to  October  12,  1895,  Jersey  City  had  ob- 
tained its  water  supply  from  the  Passaic  river, 
near  Belleville.  As  the  river  water  below  Pater- 


2 


son  had,  by  that  time,  become  unfit  for  domestic 
purposes,  Jersey  City,  on  that  day,  contracted  for 
a temporary  supply  to  be  furnished  by  the  East 
Jersey  Water  Company.  By  this  contract  and  by 
supplementary  ones  this  supply  was  continued  un- 
til May,  23,  1904,  when  the  new  supply  obtained 
from  the  defendants’  works  was  turned  on. 

The  original  contract  looking  to  such  a supply 
was  made  between  the  City  and  Flynn  on  February 
IQ  28,  1899.  Flynn  thereby  agreed  “ to  construct  a 
new  system  of  water  works  for  Jersey  City  and  to 
supply  said  City  therefrom  with  pure  and  whole- 
some water  ” in  two  years  and  a half  thereafter, 
i.  e.,  by  August  28,  1901.  After  doing  some  work 
he  assigned  the  contract  to  the  Jersey  City  Water 
Supply  Company.  By  a supplementary  contract, 
made  on  March  31,  1902,  the  time  for  completion 
was  extended  to  December  25, 1903.  It  was  not, 
in  fact,  completed  to  such  an  extent  that  the  water 
2q  could  be  turned  on  until  May  23,  1904.  Since  that 
time  the  City  has  received  its  water  supply  from 
the  new  works,  which  are  still  in  the  possession  of 
the  Water  Supply  Company. 

The  water  is  taken  from  the  Rockaway  water- 
shed, 122  1-2  square  miles  in  extent  above  the  in- 
take, or  reservoir,  at  Boonton.  Its  principal 
sources  are  Green  Pond,  Denmark  Lake,  Split 
Rock  Lake,  Dixon’s  Pond,  Shongum  Lake  and 
other  smaller  ponds  and  brooks.  Rising  in  the 
30  Longwood  valley,  the  Rockaway  flows  in  a circuit- 
ous course  past  the  towns  of  Port  Oram,  Dover, 
Rockaway  and  Boonton,  and  it  finally  empties  in- 
to the  Passaic  at  a point  about  seven  and  a half 
miles  (in  an  air  line)  above  Little  Falls,  and  about 
twelve  miles  (in  an  air  line)  above  Paterson.  The 
plan  adopted  was  to  construct  a reservoir,  just  be- 
low Boonton,  which  would  be  both  an  intake  and  a 
storage  reservoir,  capable  of  containing  above  the 
effluent  pipes  7,362  million  gallons,  and  capable  of 


3 


supplying’  fifty  millions  of  gallons  a day.  Jersey 
City,  at  the  time  of  the  writing  of  this  opinion, 
uses  about  forty  millions  of  gallons  daily.  From 
this  reservoir  the  water  is  conducted  through  a 
steel  pipe  and  through  tunnels  to  Jersey  City  by 
gravity.  The  old  Belleville  mains  have  been 
abandoned. 

The  case  involves  a variety  of  questions,  nearly 
all  of  them  depending  upon  the  proper  construe- 
tion  of  the  contract  of  February  28,  1899,  and  of 
three  other  contracts  supplemental  thereto.  Some 
of  these  questions  are,  by  no  means,  easy  of  solu- 
tion. 

The  contract  of  February  28,  1899,  is  based  up- 
on the  act  of  1888  (P.  L.,  1888,  p.  366).  This  act 
reads  as  follows  : “That  it  shall  be  lawful  for  the 
board  of  aldermen,  common  council,  city  council, 
aqueduct  board,  board  of  public  works,  water  com- 
missioners, township  committee,  town  committee  ^0 
or  other  board,  body  or  department  of  any  munic- 
ipal corporation  in  this  State,  having  the  charge 
or  control  of  the  water  supply  of  any  such  munic- 
ipal corporation  to  make  and  enter  into  a con- 
tract or  agreement  with  any  water  company  or 
other  company,  contractor  or  contractors,  for  one 
year,  or  for  a term  of  years,  for  the  obtaining  and 
furnishing  of  the  supply,  or  a further  or  other 
supply  of  water  to  such  municipal  corporation,  for 
the  purpose  of  extinguishing  fires  and  for  such 
other  lawful  uses  and  purposes  as  may  be  deemed 
necessary  or  convenient ; and  any  such  contract 
and  agreement,  when  so  made,  shall  be  the  valid 
and  lawful  contract  of  such  municipal  corporation, 
as  well  as  of  any  such  water  company  or  other 
company,  contractor  or  contractors,  according  to 
the  tenor  thereof,  and  the  sum  or  sums  of  money 
in  such  contract  agreed  to  be  paid  in  each  year  by 


4 


any  such  municipal  corporation,  or  by  any  board, 
body  or  department  thereof,  or  so  much  thereof 
as  may  be  necessary  after  appropriating  to  the 
payment  thereof  the  water  rents  or  proceeds  of 
sales  of  water  collected  by  such  municipal  cor- 
poration applicable  to  that  purpose,  shall  be  an- 
nually appropriated,  levied,  assessed  and  collected 
as  a tax  upon  the  real  and  personal  estate  within 
such  municipal  corporation  and  liable  to  taxation 
for  other  municipal  purposes,  and  the  said  real 
and  personal  property  is  hereby  made  liable  to 
and  for  the  assessment  and  collection  of  such  tax  ; 
provided,  however,  and  it  is  hereby  expressly  en- 
acted, that  no  such  agreement  and  contract  shall 
be  made  for  a period  longer  than  twenty-five 
years  in  any  one  term  ; and  provided  further,  that 
in  any  municipal  corporation  having  a board  of 
public  works  and  a board  of  finance  and  taxation, 
if  the  contract  and  agreement  be  made  and  en- 
tered into  by  any  such  board  of  public  works,  it 

20  shall  not  be  binding  upon  such  municipal  corpora- 
tion until  the  same  shall  have  been  approved  by 
such  board  of  finance  and  taxation  ; and  provided 
further,  that  such  contract  may  contain  an  option 
for  the  acquiring  by  such  municipal  corporation  of 
the  land,  water  and  water  rights  for  such  supply, 
on  terms  to  be  fixed  in  said  contract.” 

This  act,  it  will  be  seen,  authorizes  two  things  : 

OQ  first,  a contract  for  a water  supply,  to  be  furnished 
by  the  owner  of  the  works  for  a term  of  not  more 
than  twenty-five  years ; second,  a contract  for 
an  option  for  the  purchase  of  the  land,  water  and 
water  rights  (including,  of  course,  the  works 
erected  in  connection  therewith).  The  validity 
and  efficacy  of  this  act  was  affirmed  in  Slinger- 
land  v.  City  of  Newark,  25  Vr.,  62,  and  in  Van- 
Reipen  v.  Jersey  City,  29  Vr.,  262. 

The  contract  in  question  provides  for  a twenty- 
five  years’  supply,  and  it  also  contains  an  option.  It 


5 


is  admitted  by  both  sides  that  the  original  contract 
as  made  conforms  to  the  provisions  of  the  act.  By 
act  of  1895  (P.  L.  p.,  775)  it  was  provided  that  the 
question  of  purchase,  according  to  the  option, 
should  be  submitted  to  a vote  of  the  people  of  the 
city.  This  was  done.  The  voters  voted  to  accept, 
and  formal  notice  of  the  result  was  given  to  the 
Water  Company.  Now,  counsel  differ  widely  as  to 
the  effect  of  this  vote  and  notice  upon  the  status 
of  the  parties.  Counsel  for  the  City  contend  that  ^ 
its  effect  was  to  abrogate  or  nullify  the  provisions 
of  the  contract  in  reference  to  the  supply  of  water 
for  a term  of  years  and  to  put  the  City  in  the  posi- 
tion of  one  who  had  merely  agreed  to  purchase, 
while  counsel  for  the  Water  Company  contend 
that  the  provisions  relative  to  the  quarter-yearly 
payments  of  water  continued  in  force  until  the 
price  of  the  works  ($7,595,000)  was  actually  paid  or 
tendered  by  the  city.  Obviously,  this  question  can 
only  be  solved  by  considering  the  terms  of  the 
agreement. 

The  agreement  of  February  28,  1899,  provides 
that  the  specification  prepared  by  the  city,  on 
which  the  bidding  took  place  and  the  accepted 
proposal  are  to  be  regarded  as  a part  of  it. 

The  specification  declares  that  the  Mayor  and 
Aldermen  of  Jersey  City  will  receive  proposals  for 
a supply  of  pure  and  wholesome  water  under  the 
following  plan  : Then  follows  the  plan.  At  the 
sacrifice  of  brevity,  it  will  be  necessary  to  set  39 
forth  such  of  its  provisions  as  throw  light  upon 
the  point  at  issue.  They  are  the  following  : 

“ The  water  must  be  delivered  by  gravity  at 
Bergen  reservoirs.  ” (These  were  the  old  reser- 
voirs in  Jersey  City  into  which  the  Passaic  water 
had  been  conducted  from  the  intake  at  Belleville.) 

“ The  first  works  must  be  constructed  with  storage 
and  intake  reservoirs  of  sufficient  capacity  and  so 
located  as  to  be  capable  of  collecting  and  deliver- 
ing fifty  million  gallons  daily,  at  all  times.  ” 


6 


“ Whenever  during  the  term  of  the  contract,  but 
prior  to  the  exercise  of  the  City's  option  to  pur- 
chase, the  City  shall  notify  the  contractor  to  in- 
crease the  capacity  of  his  water  works,  then  the 
contractor  shall  immediately  proceed  to  construct 
such  additional  storage  and  intake  reservoirs  as 
may  be  necessary,  so  located  and  of  such  capacity 
as  to  be  capable,  together  with  those  previously 
constructed,  of  collecting  and  delivering  seventy 
million  gallons  at  all  times." 

“Bidders  must  state  a price  per  million  gallons 
for  a supply  of  twenty-five  million  gallons 
daily,  a price  per  million  gallons  for  all 
in  excess  of  twenty-five  million  gallons  daily  up  to 
thirty  million  gallons  daily  ” &c.,  &c. 

“ Bidders  must  also  state  a price  for  which  the 
City  can  buy  and  own  the  water  works  of  a capa- 
city of  fifty  million  gallons  daily,  together  with 
the  water  supply,  water  rights,  lands,  reservoir 
sites,  rights  of  way  and  all  easements  necessary  to 
20  fulfill  the  requirements  of  this  specification  and  to 
the  extent  of  seventy  million  gallons  of  water 
daily;  said  purchase  to  take  effect  on  completion 
and  acceptance  of  the  works , if  the  City  shall  give 
notice  of  its  intention  to  purchase  within  one  year 
after  date  of  contract." 

“ The  city  will  pay  quarterly  the  sum  due  to  the 
contractor  at  such  depositories  as  the  contractor 
may  designate  and  at  such  times  as  are  agreed 
upon  in  the  contract." 

“ If  a contract  is  entered  into,  it  will  run  for 
twenty-five  years  from  the  date  of  the  contract, 
undoubtedly,  a penalty.  Jessel  mentions  another 
unless  sooner  terminated  by  a purchase  of  the 
water  works  by  the  City  as  herein  provided  for ." 

On  this  specification  Flynn’s  proposal  was  as 
follows : 

“ I hereby  propose  to  provide  a new  supply  of 
water  * * * for  the  following  prices : 


7 


“ For  each  million  gallons  of  water  furnished  up 
to  twenty-five  million  gallons  daily,  thirty-six  dol- 
lars per  million  gallons.  For  each  million  gallons 
in  excess  of  twenty-five  million  gallons  daily, 
thirty-four  dollars  per  million  gallons  daily,”  &c., 

&c.,  (up  to  limit  of  capacity  of  works). 

“ For  the  water  works  and  all  appurtenances 
thereof  necessary  fo  fulfil  the  requirements  of 
these  specifications  to  the  extent  of  fifty  million 
gallons  daily,  together  with  the  water  supply, 
water  rights,  lands,  reservoir  sites,  rights  of  way 
and  all  easements  necessary  to  fulfil  the  require- 
ments of  these  specifications  and  to  the  extent  of 
seventy  million  gallons  daily  forever,  which  pur- 
chase can  be  made  by  the  city  when  the  water 
works  are  completed  and  accepted  hereunder  ; pro- 
vided, that  the  city  shall  give  notice  of  its  inten- 
tion to  purchase  within  one  year  after  the  date  of 
contract,  the  sum  of  $7,595,000.  ” 

On  this  specification  and  proposal,  the  contract 
was  drawn.  After  binding  the  contractor  to  con- 
struct the  works  in  strict  conformity  with  the 
above  specification  and  proposal,  it  continues : 

“Such  works  shall  be  so  constructed  and  main- 
tained by  the  contractor  that  the  water  delivered 
therefrom  shall  be  pure  and  wholesome  and  free 
from  pollution  deleterious  for  drinking  and  domes- 
tic purposes,  during  the  time  that  Jersey  City 
shall  take  water  by  the  million  gallons.  If  such 
works  and  supply  are  purchased  by  Jersey  City  30 
they  shall  be  delivered  to  said  city  as  a completed 
operating  plant  free  from  pollution  as  afore- 
said. ” 

In  its  third  section  it  expressly  provides  for  pay- 
ment for  each  million  gallons,  as  mentioned  in  the 
proposal. 

Its  fifth  section  reads  as  follows  : 

“ The  said  contractor  hereby  covenants  and 
agrees  that  he  will  upon  the  receipt  of  notice  as 


8 


provided  in  the  specifications  and  the  'payment  of 
the  purchase  price , sell  and  convey  said  water 
supply  with  the  appurtenances  upon  any  of  the 
following  options.’'  Then  follow  the  options  men- 
tioned in  the  specifications  and 

The  sixth  and  ninth  sections  also  bear  upon  the 
present  inquiry.  “ Sixth.  It  is  understood  and 
agreed  in  case  the  City  shall  give  notice  within  one 
year  from  the  date  of  this  contract  of  its  intention 

IQ  to  purchase  said  water  supply  and  water  works 
under  said  specifications,  when  the  water  works 
are  completed  and  accepted,  that  then  the  city 
shall  have  such  reasonable  time  to  test  said  works 
and  the  water  supply  after  completion  and  before 
the  acceptance  thereof  for  purchase  Jersey  City 
may  deem  necessary  and  reasonable  for  that  pur- 
pose, provided  such  test  shall  not  extend  beyond  a 
period  of  four  years  and  eleven  months  from  the 
date  of  this  contract.” 

2^  “ Ninth.  It  is  further  understood  and  agreed 

that  as  long  as  Jersey  City  shall  continue  to  take 
the  water  by  the  million  gallons  without  purchas- 
ing the  water  supply  and  works  under  the  options 
aforesaid,  no  water  shall  be  sold  or  furnished  to 
any  other  person,”  &c.,  &c. 

It  seems  to  me  that  these  clauses,  read  consecu- 
tively, show  a very  clear  and  definite  scheme  ; a 
scheme  that  may  be  stated  in  the  words  of  the 
specification.  “ If  a contract  [i.  e.  a contract  for 

3Q  the  supply  of  water  by  the  million  gallons  and 
containing  an  option  ] is  entered  into,  it  will  run 
for  twenty-five  years  from  the  date  of  the  con- 
tract, unless  sooner  terminated^by  a purchase  of 
the  water  works  by  the  city  as  herein  provided 
for.”  What  is  the  meaning  of  the  word  “pur- 
chase ”?  Is  it  used,  inaccurately,  as  synonymous 
with  agreement  to  purchase,  or  is  it  used  in  its 
proper  signification  of  actual  acquisition  of  full 
title  for  a valuable  consideration?  The  contract 


9 


itself  gives  the  answer.  It  reads,  in  clause  fifth  : 

The  contractor  hereby  covenants  that  he  will  “ upon 
the  receipt  of  notice  ” (i.  e.,  notice  of  the  popular 
vote  of  acceptance)  “ and  the  payment  of  the  pur- 
chase price  sell  and  convey  said  water  supply  with 
the  appurtenances  to  Jersey  City.”  And  in  clause 
sixth,  “in  case  the  city  shall  give  notice  within 
one  year  from  the  date  of  this  contract  of  its  inten- 
tion to  pur  chase  * * * when  the  water 

works  are  completed  and  accepted  then  the  city  ^ 
shall  have  such  reasonable  time  to  test  said  works 
and  water  supply  after  completion  and  before  ac- 
ceptance thereof  for  purchase  as  Jersey  City  may 
deem  necessary  and  reasonable  for  that  purpose, 
provided  such  test  shall  not  extend  beyond  a period 
of  four  years  and  eleven  months  from  the  date  of 
this  contract.”  This  clause  only  follows  and  ampli- 
fies similar  language  in  the  specification— “said 
purchase  to  take  effect  on  completion  and  acceptance 
of  the  works  if  the  city  shall  give  notice  of  its  in- 
tention  to  purchase  within  one  year  after  the  date 
of  the  contract.” 

Here,  then,  is  an  express  declaration  that  the 
notice  is  not  to  be  treated  as  a present  purchase 
but  as  a notice  of  intention  to  purchase  at  a future 
time,  after  completion  and  after  test.  The  con- 
tract is  to  be  performed  in  two  years  and  one 
half  after  its  date,  but  the  test  may  be  made  at 
any  time  within  four  years  and  eleven  months.  In 
other  words,  two  years  and  five  months  may  inter-  39 
vene  between  the  completion  and  the  test  that  is 
to  precede  the  purchase.  But  during  all  this  in- 
terval Jersey  City  must  take  the  water  by  the 
million  gallons,  for  here  again  the  contract  pro- 
vides as  follows  : “ Second,  Jersey  City  agrees  to 

take  the  water  aforesaid  and  use  the  same  for  its 
water  supply  when  said  works  are  completed  in 
accordance  with  the  specification  and  plan  No.  1, 
as  soon  as  said  contractor  is  ready  to  deliver  pure 


10 


and  wholesome  water  from  such  supply.  ” “ Third, 
Jersey  City  agrees  to  pay  for  such  water  when  de- 
livered as  follows.  ” Then  follows  the  price  per 
million  gallons  on  a graduated  scale.  It  is  hard 
to  imagine  how  language  could  have  been  more 
explicit.  Counsel  for  the  City  when  pressed  to 
say  what  would  be  the  City’s  obligation  in  case  it 
actually  took  and  used  the  water  during  the  inter- 
val of  two  years  and  five  months,  made  two  sug- 
]Q  gestions  : (1)  That  the  City  was  not  obliged  to 

pay  anything  ; that  the  test  that  the  City  had  the 
right  to  make  was  the  receipt  and  use  of  the 
water,  and  that  such  test  might  be  extended  over 
the  entire  period,  and  (2)  that  the  express  provis- 
ions of  the  contract  were  suspended  during  the 
two  years  and  five  months  and  that  the  City  was 
only  obliged  to  pay  as  much  as  the  water  was  rea- 
sonably worth  ; the  assumption,  without  proof, 
being  that  it  was  reasonably  worth  less  than  the 
price  fixed. 

Neither  of  these  suggestions  finds  any  support 
in  the  language  of  contract.  They  are  directly 
opposed  to  the  express  stipulation  that  the  City 
agrees  to  take  and  use  the  water  as  soon  as  the 
contractor  is  ready  to  deliver  it  and  to  pay  for  it 
according  to  the  schedule  prices. 

Nothing  is  more  obvious  or  more  reasonable 
than  the  scheme  as  thus  defined.  Jersey  City 
could  no  longer  use  its  old  supply.  It  wanted 
3Q  a new  one.  It  was  for  its  advantage  not 
to  assume  the  cost  of  construction  until  it 
had  given  the  works  a trial  ; until  it  was  dem- 
onstrated that  the  plan  and  supply  were  good  ; 
in  other  words,  the  risk  was  thrown  upon  the  con- 
tractor. It  is  conceivable  that  he,  under  these  cir- 
cumstances, would  be  willing  not  only  to  construct 
works  costing  over  seven  millions  of  dollars,  from 
which  he  bound  himself  not  to  deliver  water  to 
anyone  except  Jersey  City,  but  also  to  supply 


11 


either  gratis  or  without  fixing  any  price  for  a 
period  of  two  years  and  five  months,  water  worth 
over  $800,000.  The  Jersey  City  officials  had  no 
such  idea,  in  the  first  instance,  for  they  paid  with- 
out objection  for  two  quarters,  at  schedule  rate. 

But,  it  is  further  argued  that  equity  looks  upon 
things  agreed  to  be  done,  as  actually  performed 
and  that,  consequently,  equity  considers  the  vendee 
as  the  purchaser  of  the  estate  sold,  and  the  pur- 
chaser as  a trustee  for  the  vendor  of  the  price. 
Counsel  for  the  city  contends  that  as  a consequence 
of  this  doctrine  (I  quote  from  his  brief),  “ the  City’s 
rights  reverted  to  the  date  of  the  contract  and 
thereby  the  smaller  and  inconsistent  contract,  to 
purchase  water  from  this  plant  for  twenty-five 
years,  was  discharged  and  thereafter  the  contract 
to  purchase  alone  remained.  ” This  statement  will 
not  stand  examination.  It  is  true  that,  speaking 
generally,  equity  regards  the  vendee  as  a purchaser 
for  whom  the  vendor  holds  the  legal  title  in  trust, 
but  the  doctrine  is  not  carried  to  an  unwarrantable  ^0 
extreme.  It  is  kept  within  reasonable  limits  by 
the  perfectly  well  settled  rule  that  in  the  absence 
of  express  stipulation  the  purchaser  takes  the  rents 
and  profits  and  pays  interest  on  the  purchase 
money  only  from  the  time  fixed  for  the  completion 
of  the  contract  ; not  from  the  time  of  its  execution. 

Fry  Sp.  Perform.,  Sec.  891  ; King  v.  Ruckman,  9 C. 

E.  Gr.,  298  ; DeVisme  v.  DeVisme,!  McN.  & Gor., 

336,  and  as  I shall  show  hereafter,  not  always  as 
early  as  that.  And  again,  the  court  never  applies 
the  doctrine  in  such  a way  as  to  override  the  ex- 
press stipulation  of  the  parties.  I have  already 
shown  that  this  requires  the  water  to  be  paid  for 
by  the  million  gallons  until  the  time  of  the  com- 
pletion of  the  purchase  by  the  transfer  of  the  title 
and  payment  of  the  price.  And  so  the  express 
stipulation  is  in  conformity  with  the  rule  of  equity 
which  would  prevail  in  the  absence  of  express 
stipulation  on  the  subject. 


12 


Looking,  therefore,  at  the  original  agreement 
alone,  it  is  quite  plain  that  the  City  was  required 
to  pay  for  the  water  by  the  million  gallons  at  the 
schedule  rates,  until  it  actually  took  the  title  and 
paid  the  price. 

But  the  works  were  not  completed  within  the 
time  agreed  upon,  and  supplemental  agreements 
were  made.  Do  they  lend  countenance  to  the 
City’s  contention?  By  contract  of  March  31, 
IQ  1902,  the  time  for  the  completion  of  the  works  was 
extended  to  December  25,  1903,  and  the  time  for 
the  testing  of  the  works  was  extended  to  October 
1,  1905.  There  is  nothing  in  this  supplemental 
contract  that  lends  added  force  to  the  argument 
of  counsel  for  the  City.  It  contains  this  provision  : 
“ It  is  further  agreed  that  the  limit  of  time  for  the 
testing  of  the  works  and  water  supply  and  the 
payment  therefor  by  the  City  after  completion  and 
before  the  acceptance  thereof  for  purchase  shall 
be  extended,  if  desired  by  Jersey  City,  to  a period 
^ not  beyond  October  1,  1905.”  Here  again  we  see 
that  the  distinction  between  the  time  allowed  for 
completing  the  works  and  the  acceptance  thereof 
for  purchase  is  sharply  indicated.  That  the  con- 
tractor was  bound  to  begin  to  furnish  the  water 
immediately  upon  completing  the  works  appears 
from  the  clause  following  : “ The  Mayor  and  Ald- 
ermen of  Jersey  City  do  hereby  agree  that  the 
time  to  complete  the  work  and  furnish  the  water 
3Q  specified  in  said  contract  of  February  28,  1899, 
shall  be  and  hereby  is  extended  until  December 
25,  1903.”  The  water  to  be  furnished  was  neces- 
sarily the  water  which  Jersey  City  had  agreed  to 
take  and  use  and  pay  for  as  therein  provided.  In 
deference  to  counsels’  earnest  argument,  I have 
spent  perhaps  more  time  upon  this  question  than 
it  may  seem  to  deserve. 

The  next  question  is  whether  the  position  of  the 
parties  in  reference  to  payments  was  altered  by 


13 


the  filing  of  the  bill.  The  water,  as  I have  said, 
was  turned  on  on  May  23,  1904.  The  bill  was  filed 
August  1,  1905,  that  is,  before  the  time  for  testing 
and  acceptance  (October  1,  1905)  had  expired. 

The  bill  does  not  contain  an  offer  to  pay  the 
whole  price,  but  only  such  part  of  it  as  may  be 
decreed  to  be  due.  It  does  not  aver  a willingness 
to  pay  any  definite  sum  and  it  does  not  charge  that 
any  particular  sum  is  justly  payable.  It  has  never 
tendered  any  part  of  the  price.  This  being  so,  can  ^ 
the  mere  filing  of  the  bill  be  regarded  as  the 
equivalent  of  a completion  of  the  contract  ? The 
question  seems  to  answer  itself.  The  mere  filing 
of  the  bill  is,  certainly  not  the  equivalent  of  a 
tender  of  the  price.  It  bears  more  resemblance  to 
an  application  to  this  Court  to  postpone  payment 
until  such  time  as  this  court  may  determine  how 
much  is  justly  due.  The  allegation  is  as  follows  : 

“ The  voters  of  Jersey  City  having  voted  to  pur- 
chase said  water  works,  and  the  water  works 
having  thereafter  been  constructed  for  your  orator  ^ 
under  said  contract,  your  orator  became  and  is  the 
owner  thereof  in  equity  and  entitled  to  the  posses- 
sion thereof.  Your  orator  is  compelled  for  the 
reasons  aforesaid  to  accept  said  water  works,  not- 
withstanding they  are  not  completed  in  accordance 
with  said  contract.  It  desires  to  pay  therefor  but 
it  should  not  be  compelled  to  pay  to  the  defend- 
ants said  sum  of  $7,595,000  for  the  following  rea- 
sons.^ Then  follow  the  reasons.  The  prayer  is  gQ 
that  this  Court  may  ascertain  “how  much  and 
what  part  of  said  water  works  system  the  said 
defendants  can  convey  to  your  orator  ; and  what 
part  of  the  said  consideration  of  $7,595,000  should 
be  paid  by  your  orator,”  and  that  Flynn  and  the 
Water  Company  “ may  be  ordered  by  decree  of 
this  Court  to  convey  to  your  orator  said  water 
works  or  so  much  thereof  as  they  are  able  to 
convey  upon  payment  by  your  orator  of  such  part 
of  said  consideration  as  may  be  so  ascertained.” 


14 


The  position  of  the  City  is,  therefore,  this  : “ I 

am  not  willing  to  take  the  works  as  you  have  con- 
structed them  and  say  the  contract  price.  I am 
willing  to  accept  and  take  them  so  far  as  con- 
structed for  such  part  of  the  contract  price  as  the 
Court  shall  decide  that  I ought  to  pay.”  It  had 
legislative  authority  to  raise  money  by  an  issue  of 
bonds  bearing  interest  at  five  per  cent,  which,  how- 
ever, it  is  not  authorized  to  sell  below  par  (P.  L. 

^ 1895,768).  Its  water  board  has  not  as  yet  author- 

ized an  issue.  Defendants'  counsel  say  they  can- 
not be  sold.  Whether  they  can  or  cannot,  it  is  ad- 
mitted that  there  has  never  actually  been  in  the 
treasury  money  available  for  the  payment. 

If  the  City  had,  before  suit,  tendered  the  pur- 
chase money,  or  so  much  as  was  really  due,  or,  if 
after  bill  filed,  it  had  paid  the  money  into  Court, 
its  position  with  reference  to  the  question  now 
under  consideration  would  have  been  very  differ- 
ent But  it  has  not.  I do  not  see  how,  under 
these  circumstances,  the  mere  filing  of  the 
bill  could  be  said  to  have  altered  the  contract 
rights  of  the  parties  and  to  have  conferred 
upon  the  City  that  right  to  the  possession 
which  the  contract  only  gave  upon  payment  or 
tender. 

In  Reddish  v.  Miller's  Executor,  12  C.  E.  Gr., 
514,  the  facts  were  these.  An  intestate  had 
agreed  to  convey  by  a time  fixed.  Before  that 

3Q  time  he  died.  The  vendee's  assignees  tendered  the 
purchase  money  on  the  day,  but  the  widow  and  sole 
heir,  having  quarrelled,  refused  to  join  in  a con- 
veyance and  the  purchasers  refused  to  take  a con- 
veyance from  one  alone.  Then  the  vendor's 
administrator  filed  a bill.  The  Chancellor  decreed 
a specific  performance  and  gave  interest  on  the 
purchase  money  from  the  date  of  the  filing.  This 
the  Court  of  Errors  said  was  wrong.  Justice  Van 
Syckle  said  : “ Conceding  that  on  the  day  the  bill 

was  filed  R.  and  0.  (the  purchasers)  should  have 


15 


accepted  a good  title  if  it  had  been  offered  ; that 
they  were  bound  to  perform  on  that  day  if  the 
other  party  was  ready  to  execute  the  contract,  it  is 
obvious  that  by  no  fault  of  their  own,  but  on  ac- 
count of  the  default  of  the  other  party  they  could 
not  have  obtained  a title.  * * * If 

they  had  offered  to  consummate  the  contract  on 
the  day  the  bill  was  filed  or  at  any  time  hefore 
final  decree,  their  offer  would  not  have  been 
accepted.  It  is  not  equitable,  therefore,  to  regard  ^ 
the  filing  of  the  bill  as  the  offer  of  a deed,  because 
the  parties  who  should  have  conveyed  would  not 
do  so  on  that  day,  or  at  any  time  before,  and 
equity  could  not  compel  a conveyance  until  the 
case  was  ripe  for  final  decree.  The  filing  of  the 
bill  did  not  enable  the  purchasers  to  obtain  posses- 
sion of  the  land,  nor  give  them  any  control  what- 
ever over  it  for  the  purposes  of  the  plan  they  had 
adopted  to  dispose  of  it.  * * * The  filing 

of  the  bill  cannot  be  regarded  in  any  just  sense  as 
an  offer  to  make  the  title.” 

The  principle  upon  which  Justice  Van  Syckle 
decided  the  above  case  is  directly  applicable  to 
this. 

But  if  the  contractual  obligation  to  pay  for  the 
water  by  the  million  gallons  did  not  terminate 
when  the  city  notified  the  Company  of  the  popular 
vote  and  if  it  did  not  terminate  upon  the  filing  of 
the  bill,  when  did  it  terminate  ? There  are  two, 
and  only  two  possible  periods.  Either  the  last  30 
day  named  for  test  and  acceptance  (October  1, 
1905),  or  the  date  of  the  decree.  As  I have  al- 
ready said,  prima  facie,  in  the  absence  of  stipula- 
tion to  the  contrary,  the  time  fixed  for  the  com- 
pletion of  the  contract  is  the  time  from  which  the 
purchaser  is  entitled  to  the  rents  and  liable  for 
the  payment  of  interest.  But  this  rule  has  its  ex- 
ceptions, and  the  principle  of  one  of  them  is,  I 
think,  applicable,  to  the  case  in  hand.  It  is  this  : 


16 


Where  the  bill  is  filed  by  the  vendor  and  his  title  is 
first  made  out  (that  is,  shown  to  be  good)  in  the 
master’s  office,  the  day  when  the  title  is  made  out 
is  the  day  from  which  the  purchase  money  begins 
to  bear  interest.  The  case  is  one,  of  course, 
where,  under  the  English  system  of  conveyancing, 
the  vendor  is  in  fault  for  not  having  produced  a 
good  title  prior  to  or  at  the  time  set  for  perform- 
ance, and  the  vendee  has  refused  to  perform  on 
that  ground.  Lord  Cottenham  thus  states  the 

10  matter  in  DeVisme  v.  De  Visme,  1 McN.  & G., 
352.  “The  vendors  being  in  default,  the  delay 
having  been  occasioned  by  their  not  performing 
their  part  of  the  contract,  are  not  to  exact  from 
the  purchaser  the  payment  of  interest  until  the 
time  they  show  a good  title  on  their  abstract. 
The  effect  of  that  is  to  postpone  the  day  agreed 
on  for  the  completion  of  the  contract,  until  the 
time  when  the  vendors  put  themselves  right  and 
show  their  title  to  be  good.” 

20  The  case  in  hand  is  much  more  complicated  than 
that  just  cited.  The  complainant’s  failure  to  per- 
form consists  in  not  having  tendered  so  much  of 
the  price  as  was  really  payable.  Its  excuse  is  that 
it  did  not  know  how  much  to  tender.  But  it  has 
not  only  neglected  to  pay  the  price  ; it  has  advanced 
several  claims  that  it  has  not  made  good  by  proof  ; 
claims,  therefore,  that  the  defendant  was  not 
bound  to  submit  to.  On  the  other  hand,  the  de-  > 
fendant  has  insisted  that  it  was  entitled  to  the  full 
purchase  price.  It  has  never  indicated  that  it 
would  take  less.  But  the  court  finds  that  it  was 
entitled  to  considerably  less.  The  exact  sum  pay- 
able has,  therefore,  remained  a matter  of  doubt 
until  decree. 

The  matter  may  be  viewed  in  another  way.  The 
water  was  turned  on  in  May,  1904.  The  City  had, 
therefore,  a year  and  a half  in  which  to  make  the 
final  test  and  to  determine  for  itself  the  sum 


17 


which  it  thought  itself  at  liberty  to  deduct  for 
deficient  performance,  and  it  might  have  tendered 
the  sum  which  it  considered  to  have  been  due  at 
its  peril.  It  did  not  take  that  course.  It  chose, 
rather,  to  make  its  tests  during  the  progress  of  the 
cause,  and  to  let  the  Court  decide  whether  those 
tests  showed  complete  performance  by  the  Water 
Company,  and  what,  in  equity,  it  was  bound  to  pay. 
Having  thus  sought,  as  far  as  it  could,  to  postpone 
performance  until  decree  ; having  thus  refused  to 
take  the  responsibility  of  tendering  the  money 
actually  due,  or  of  paying  it  into  Court,  it  is  hardly 
in  a position  to  say  that  it  should  have  the  same 
benefit  that  it  would  have  had  had  it  performed 
by  the  time  prescribed  by  the  contract. 

There  are  many  cases  in  which  the  question  has 
come  up.  They  show  that  in  dealing  with  the 
subject  the  Court  does  that  which  on  the  particu- 
lar facts  is  equitable,  unless  it  feels  itself  con- 
trolled by  some  stipulation  so  clear  and  positive 
as  to  preclude  all  discretionary  action.  Wil- 
liams v.  Glenton,  L.  R.,  1 Ch.  Ap.,  200,  and  Mayor 
of  London  & Tubbs  Contract  (1894),  2 Ch.  Div., 

524,  are  recent  illustrations  of  such  preclusion. 

On  the  other  hand,  Sherwin  v.  Shakespear,  5 de  G. 
McN.  &Gor.,  517,  shows  how  the  Court  does  equity 
notwithstanding  the  strict  letter  of  the  contract. 

An  extended  review  of  the  cases  would  be  super- 
fluous because  we  have  a leading  case  in  our  own 
courts.  In  King  v.  Ruckman,  9 C.  E.  Gr.,  556,  the  law  30 
was  settled  by  the  Court  of  Appeals.  There  King 
sued  Ruckman  for  a specific  performance  of  an 
agreement  to  convey  several  tracts  of  land,  to 
some  of  which  he  had  title  and  to  some  of  which 
he  had  not.  A part  of  the  purchase  money  was  to 
be  paid  on  June  1,  1868  ; the  rest,  so  far  as  it  was 
to  be  paid  in  cash,  on  July  1st ; the  balance  of  the 
price  to  be  then  secured  by  a mortgage.  The 
money  was  not  paid  on  June  1,  1868.  Whether  it 


18 


was  properly  tendered  was  one  of  the  questions  in 
dispute.  The  Chancellor  thought  it  was  not  and 
that  time  was  of  the  essence  of  the  contract.  The 
Court  of  Appeals  thought  it  was  and  that  time 
was  not  of  the  essence  of  the  contract.  It  ac- 
cordingly directed  a specific  performance,  as  far  as 
performance  was  possible,  with  an  abatement,  if 
equitable,  of  the  price.  The  case  came  back  to 
this  Court  (9  C.  E.  Gr.,  298)  and  Dodd,  V.  C.,  gave  a 
specific  performance  with  variations.  It  appeared 
that  the  vendor  had  remained  in  possession 
and  that  the  rents  were  not  more  than 
equal  to  the  taxes.  One  of  the  questions 
was  whether  Ruckman  was  entitled  to  interest 
on  the  purchase  money  from  the  day  fixed  for  the 
completion  of  the  contract.  It  was  held  that  he 
was  not.  Dodd,  V.  C.  said  : “ It  seems  to  me  clear 
that  Ruckman  is  not  entitled  to  the  interest  and 
that  the  complainant  is  entitled  to  give  the  mort- 
2q  ga&e  f°r  ^e  balance  for  the  time  it  would  have  to 
run  (five  years)  and  on  the  terms  it  would  have 
had,  if  given  on  the  first  of  July,  1868,  in  pursuance 
of  the  contract.,,  It  will  thus  be  seen  that  at  the 
instance  of  the  purchaser  the  contract  was  varied 
in  two  particulars.  Interest  was  to  run  from  the 
date  of  the  decree  and  not  from  the  time  set  for 
completion,  and  the  mortgage  given  was  to  contain 
the  same  terms  as  to  future  payment  of  install- 
ments of  the  principal  as  it  would  have  con- 
3Q  tained  had  it  been  executed  at  that  time. 
The  decree  was  affirmed  on  appeal.  Beas- 
ley, C.  J.,  quoting  from  Lord  St,  Leonard, 
thus  states  the  rule : “ Where  interest  is 
more  in  amount  that  rents  and  profits  and 
it  is  clearly  made  out  that  the  delay  was  occa- 
sioned by  the  vendor  * * * the  Court 

gives  the  vendor  no  interest  but  leaves  him  in  the 
possession  of  the  interim  rents  and  profits.  ” Then 
he  says  : “ It  has  been  intimated  that  in  order 

to  put  the  rule  in  force  it  was  necessary  that  the 


19 


vendor  should  not  only  be  in  fault  but  that  such 
fault  should  be  wilful.  I think  there  is  not  the 
least  foundation  for  such  a contention.  Indeed, 
the  rule  has  been  almost  universally  applied  in 
those  instances  where  there  was  no  suggestion  of 
anything  intentionally  wrong  in  the  conduct  of  the 
sale  of  the  property.  It  has  received  its  most 
frequent  exemplifications  in  cases  in  which  the 
delay  in  completing  the  contract  has  arisen  from 
the  discovery  of  latent  defects  in  the  title.  On 
such  occasions  the  vendor  was  no  further  in  fault 
than  every  one  is  in  fault  who  undertakes  to  do 
what  he  afterwards  discovers  he  is  not  prepared 
to  do.  In  such  cases,  the  vendor  is  simply  blama- 
ble  for  having,  perhaps,  omitted  to  have  his  title 
looked  into  with  sufficient  care.  These  illustra- 
tions make  it  demonstratably  clear  that  the 
point  as  to  the  degree  of  the  culpability  of  the 
vendor  has  not  in  the  least  affected  the  course  of 
equity  in  the  particular  in  question.  ” 

The  above  cases  show  very  clearly  that  where  a 
specific  performance  is  sought  and  where,  if  de- 
creed, it  is  decreed  on  equitable  terms,  the  letter 
of  the  contract  is  not  allowed  to  stand  in  the  way 
of  an  equitable  adjustment,  as  to  interest  on  the 
one  hand  and  rents  and  profits  on  the  other.  Had 
the  City  on  this  bill  taken  the  position  that  it  was 
not  obliged  to  pay  interest  on  the  purchase  money 
from  October  1,  1905,  but  only  from  the  time  of 
the  decree,  the  above  case  of  King  v.  Ruckman  30 
would  have  been  directly  in  point.  But  it  takes  no 
such  position.  On  the  contrary,  it  takes  the  posi- 
tion that  it  should  not  be  obliged  to  pay  for  the 
water  by  the  million  gallons  at  the  scheduled 
rates  ; that  it  should  be  obliged  to  pay  interest  on 
the  purchase  money  from  the  time  of  the  popular 
vote,  not,  indeed,  interest  upon  the  sum  named  in 
the  contract,  but  upon  such  sum  as  this  Court 
shall  find  to  be  due  : and,  further,  that  this  inter- 
est should  not  be  interest  at  the  legal  rate  of  six 


20 


per  cent,  but  at  some  lesser  rate,  to  be  determined 
arbitrarily  by  the  Court,  Singularly  enough,  the 
Water  Company,  on  the  other  hand,  against  its  ap- 
parent interest,  insists  that  water  rents  at  the 
schedule  rate  should  continue  to  be  paid  until  de- 
cree : that  not  until  then  should  interest  upon 
purchase  money  begin. 

The  following  table  will  show  how  the  matter 
stands.  The  amounts  are  computed  at  the  sched- 


ule rates : 

Quarter  ending  Aug.  23,  1904 $105,089 

“ “ Nov.  23,  1904 106,846 

“ “ Feb.  23,  1905  115,744 

“ “ May  23,  1905 105,733 


Total  for  first  year $433,412 

Quarter  ending  Aug.  23,  1905 $106,548 

“ “ Nov.23,  1905 107,995 

“ “ Feb.  23,  1906 111,659 

“ “ May  23,  1906 106,791 

20  — 

Total $432,993 

Quarter  ending  Aug  23,  1906 $114,957 

“ “ Nov.  23,  1906 117.321 

“ “ Feb.  23,  1907 123,043 

“ “ May  23,  1907 117,085 


Total $472,406 

Interest  at  6 per  cent,  on  $7,595,000.  . . . $455,700 
Cost  of  operation  (as  agreed  by  parties) . 50,000 

Total $505,700 


The  cost  of  operation  is,  of  course,  added  to  the 
interest  because,  on  the  assumption  that  the  City 
is  to  be  regarded  as  in  possession,  it  would  be  pay- 
ing what  the  Company  is  now  paying  to  make  that 
possession  effective  and  useful. 

The  above  table  shows  that  if  Jersey  City  should 
pay  interest  at  six  per  cent,  and  be  charged  with 
a sum  equal  to  the  cost  of  maintenance,  it  would 


21 


pay  more  than  it  would  if  it  paid  for  the  water  by 
the  million  gallons.  The  interest  is  computed  on 
the  table  upon  the  whole  contract  price  ; but,  with 
the  allowances  made,  the  result  is  the  same. 

If  payment  is  not  to  be  made  by  the  million  gal- 
lons at  the  contract  rate,  can  it  be  made  in  any 
other  way  or  at  any  other  rate  ? Counsels’  sug- 
gestion is  that  Jersey  City  should  only  pay  what 
the  water  is  fairly  worth.  There  is  no  evidence 
that,  even  if  this  proposition  is  sound,  the  contract 
rate  is  not  reasonable.  The  contract  rate  is,  for 
each  million  gallons  up  to  twenty-five  millions, 

$36  per  million  gallons  ; for  each  million  gallons  in 
excess,  up  to  thirty  millions,  $34  ; for  each  million 
gallons  in  excess  of  thirty  millions,  up  to  thirty- 
five  millions,  $32  ; for  each  million  gallons  in  ex- 
cess of  thirty-five  millions,  up  to  forty-five  mil- 
lions, $24  ; and  for  all  beyond,  $20.  Judging  by 
the  evidence  and  by  the  reported . cases,  this  price 
is  reasonable.  There  is,  at  least,  no  evidence  to 
the  contrary.  20 

That  the  Company  would,  in  any  event,  be 
chargeable  with  interest  at  the  legal  rate  is,  I 
think,  perfectly  plain.  The  rate  chargeble  for  the 
forbearance  of  money  is,  in  the  absence  of  agree- 
ment to  the  contrary,  the  legal  rate.  Jersey  City 
v.  O’Callaghan,  12  Vr.,  349,  is  in  point.  It  was  there 
held  by  the  Court  of  Errors  that  where  damages 
for  breach  of  contract  are  to  be  assessed  or  where 
an  equivalent  is  to  be  given  for  the  use  of  money  30 
forborne,  the  statutory  rate  is  the  rate  to  be  com- 
puted. If  then,  interest  be  given  at  all,  it  would 
be  given  at  the  rate  of  six  per  cent. 

The  matter,  then,  stands  thus  : It  is  for  the 
interest  of  Jersey  City  that  she  should  be  charged 
with  water  rents  and  not  with  interest  up  to  the 
time  of  decree.  The  particular  equities  of  the  case 
and  the  principle  of  King  v.  Ruckman  require  such 


22 


a charge  and  the  defendants  concur  in  demand- 
ing it. 

I will  notice,  very  briefly,  one  other  point  made. 
It  appears  that  prior  to  March  31,  1902,  the  East 
Jersey  Water  Company  was  furnishing  Jersey  City 
with  water  at  the  rate  of  $35  per  million  gallons. 
On  that  day  it  joined  with  Flynn  and  the  Jersey 
City  Water  Supply  Company  in  an  agreement  with 
Jersey  City  to  continue  to  furnish  it  at  that  price 
jq  until  the  City  should  have  obtained  and  put  in  use 
the  new  supply ; but  not  beyond  March  1,  1907. 
It  was  stipulated  that  it  (The  East  Jersey  Com- 
pany) would  guarantee  that  the  Supply  Company 
would  construct  and  complete  the  water  works  to 
such  an  extent  that  the  water  could  be  turned  on 
from  the  new  source  on  or  before  March  1,  1904, 
and  that  if  the  works  were  not  sufficiently  com- 
pleted and  the  water  so  turned  on  by  that  date, 
the  East  Jersey  Company  would  continue  to  deliver 
the  temporary  supply  of  water  from  March  1, 1904, 
“until  such  new  supply  was  so  turned  on  at  the 
rate  of  $353,800  per  annum  until  March  1,  1907.” 
As  I have  already  said,  the  water  was  actually 
turned  on  on  May  24,  1904,  and  Jersey  City  paid 
at  the  rate  so  stipulated  for  only  two  months  and 
twenty-four  days. 

The  City  argues  that  if  it  must  pay  under  the 
provisions  of  the  contract,  it  should  only  be  re- 
quired to  pay  this  fixed  item  of  $353, COO  per 
OQ  annum.  But  it  seems  to  me  very  clear  that  the 
agreement  to  furnish  the  water  at  these  figures 
was  ihe  agreement  of  the  East  Jersey  Company 
alone.  It  was  to  last  for  a perfectly  definite  time, 
viz.  until  the  Jersey  City  Supply  Company  had  so 
far  constructed  its  own  works  as  to  be  able  to  turn 
on  its  own  water.  I am  quite  unable  to  under- 
stand how  an  agreement  by  the  East  Jersey  Com- 
pany can  be  converted  into  an  agreement  obliging 
the  Water  Supply  Company  to  continue  to  furnish 


23 


water  at  the  same  price;— more  especially  when, 
as  I have  shown,  there  was  an  express  agreement 
between  Jersey  City  and  the  Water  Supply  Com- 
pany for  a different  rate.  The  figures  named  by 
the  East  Jersey  Company  laid  the  foundation  for  a 
temporary  order  made  pendente  lite  in  a case 
where  everything  was  in  dispute.  They  cannot  be 
used  as  a substitute  for  the  contract  right  of  the 
parties. 

10 

LIQUIDATED  DAMAGES. 

The  question  next  to  be  considered  arises  in  re- 
spect of  the  City’s  claim  for  liquidated  damages. 

In  the  specification  which,  as  I have  said,  is  made 
part  of  the  contract,  there  are  the  following 
clauses  : 

“ The  contractor  will  be  allowed  two  years  and 
six  months  from  the  date  of  contract  to  complete 
the  work  and  furnish  the  water  specified.  ” 

“ For  every  day’s  delay  beyond  the  term  of  con-  ^0 
tract,  the  contractor  shall  pay  the  City  of  Jersey 
City  the  sum  of  five  hundred  dollars  per  day  as 
liquidated  damages  and  not  by  way  of  penalty.  ” 

The  contract  was  not  completed  within  the 
time  specified,  and  the  work  begun  by  Flynn 
was  continued  by  the  Jersey  City  Water  Supply 
Company. 

By  agreement  dated  July  8,  1901,  reciting  that 
Flynn  had  assigned  his  contract  to  that  Company,  oq 
the  contractors,  who  are  stated  to  be  Flynn  and 
the  Jersey  City  Water  Supply  Company  state  that 
it  is  and  remains  their  duty  to  furnish  Jersey  City 
with  the  water  supply  originally  contracted  for 
and  that  the  modifications  contained  in  the  second 
contract  shall  not  relieve  Flynn  or  his  sureties  from 
furnishing  and  delivering  to  Jersey  City  the  quan- 
tity and  quality  of  water  required  by  the  original 
contract,  nor  from  constructing  it  in  accordance 
with  the  original  contract  as  thereby  modified. 


24 


The  modifications  do  not  affect  the  present  ques- 
tion, but  a further  contract,  dated  March  31,  1902, 
contains,  among  other  things,  the  following  clauses: 

“ Whereas  the  water  works  provided  for  in  said 
contracts  have  not  yet  been  completed  and  it  is 
apparent  that  the  same  cannot  be  completed  for  a 
long  time  to  come,  and  the  said  party  of  the  second 
part  [who  are  stated  to  be  Flynn  and  the  Jersey  City 
Water  Supply  Company]  desire  the  party  of  the 
first  part  [the  City]  to  extend  the  time  for  the  com- 
pletion of  said  works  and  the  fulfilment  of  said  con- 
tracts as  hereinafter  provided  and  to  waive  # any 
claim  for  liquidated  or  unliquidated  damages  for 
delays,  until  the  expiration  of  such  extended  time.  ” 
“ Now  therefore  in  consideration  of  the  premises 
and  of  one  dollar  to  them  in  hand  paid  by  the 
party  of  the  second  part,  the  Mayor  and  Aldermen 
of  Jersey  City  do  hereby  agree  that  the  time  to 
complete  the  work  and  furnish  the  water  specified 
2^  in  said  contract  of  February  28,  1899,  shall  be  and 
hereby  is  extended  until  December  25,  1903,  and 
that  the  payment  of  five  hundred  dollars  per  day 
as  liquidated  damages  for  delay  under  said  con- 
tracts and  specifications  shall  be  incurred  or  reck- 
oned only  from  and  after  December  25,  1903.  ” 

It  is  so  clear  that  the  Jersey  City  Water  Supply 
Company,  as  well  as  Flynn,  is,  under  these  stipula- 
tions, answerable  for  such  liquidated  damages  as 
may  be  awarded  that  no  argument  is  attempted  on 
3Q  that  head.  The  contention  is  that,  notwithstand- 
ing the  explicit  language  employed,  the  sum  of 
$500  per  day  is  liquidated  damages.  It  would  be 
quite  impossible  for  the  parties  to  have  expressed 
themselves  with  greater  clearness.  They  not  only 
say  that  the  sum  named  is  liquidated  damages,  but 
they  also  say  that  it  is  not  a penalty.  The  argu- 
ment must,  therefore,  be  that  the  parties  are  pre- 
vented by  some  rule  or  law  or  equity  from  so  stipu- 
lating. I know  of  no  such  rule  nor  have  I been 
referred  to  any. 


25 


The  cases  on  the  subject  are  very  numerous. 
Certain  rules  have  been  laid  down,  some  of  which 
have  been  doubted  and  other  of  which  are  per- 
fectly well  settled.  I shall  refer  to  them  only  in 
so  far  as  they  illustrate  the  present  question. 

They  are  elaborately  considered  by  the  Appel- 
late Division  in  Wallis  v.  Smith,  29  Ch.  Div.,  243, 
where  Jessel,  M.  R.,  classifies  them  as  follows  : 

1.  Cases  in  which  a sum  of  money  is  stated  to 

be  payable,  either  by  way  of  liquidated  damages  ^ 
or  by  way  of  penalty,  for  a breach  of  several  stip- 
ulations, one  of  which  at  least  is  for  the  payment 
of  a sum  of  money  of  less  amount.  In  this  case 
the  sum  is  regarded  as  a penalty  for  a breach  of 
any  and  all  of  such  stipulations  and  only  the  actual 
damages  can  be  recovered  in  respect  of  any  of 
them.  (Astley  v.  Weldon,  2 B.  & P.,  346,  and 
Kemble  v.  Farren,  6 Bing.,  148,  are  leading  cases.) 

2.  Cases  in  which  a sum  of  money  is  stated  to 
be  payable  by  way  of  liquidated  damages  for  de- 
faults or  breaches  of  covenants  other  than  for  the 
payment  of  money.  With  respect  to  such,  there 
is  or  may  be  a distinction  founded  upon  the  tri- 
fling character  of  one  of  the  breaches.  If  the  con- 
tract contains  a variety  of  stipulations  and  they 
are  all  of  equal  or  nearly  equal  importance,  the 
sum  stated  is  regarded  as  liquidated  damages  and 
the  whole  of  it  is  recoverable  for  a breach  of  any 
one  of  them.  This  was  the  precise  point  decided 

in  Wallis  v.  Smith.  If,  on  the  other  hand,  the  gq 
contract  contains  a variety  of  stipulations  and 
they  very  substantially  in  importance,  or  relate  to 
very  trifling  matters,  whether  certainly  ascertain- 
able or  not,  then  it  appears  to  be  unsettled,  so  far 
as  the  English  cases  are  concerned,  whether  the 
sum  named  is  to  be  regarded  as  a penalty  properly 
so-called  or  as  liquidated  damages,  properly  so- 
called.  The  dicta  on  this  point  are  conflicting  and 
they  do  not  require  consideration  here. 


26 


3.  Cases  in  which  the  sum  is  called  liquidated 
damages  and  is  given  for  a single  breach.  Here 
again  we  have  to  distinguish.  The  breach  may 
consist  in  the  non-payment  of  a smaller  sum  of 
money.  In  this  case  there  is  no  conflict  of  au- 
thority. The  sum  named,  however  designated,  is 
a penalty.  Then  again  the  stipulation,  if  broken, 
may  result  in  damages  uncertain  in  amount  and, 
necessarily,  very  insignificant : in  the  words  of 
Lord  Eldon  (Astley  v.  Weldon,  2 B.  & P.  351), so 
^ gross  that  a man  would  start  at  the  bare  mention 
of  it.”  Here,  too,  the  sum,  however  designated,  is 
undoubtedly  a penalty.  Jessel  mentions  another 
class  which  I need  not  refer  to  because  it  does  not 
bear  upon  the  matter  in  hand.  The  class  to  which 
the  present  case  belongs  has  been  the  subject  of 
consideration  by  the  Court  of  Errors.  The  rule 
applicable  to  it  is  thus  expressed  by  Justice  Dixon, 
in  Monmouth  Park  Asso.  v.  Wallis  Iron  Works,  26 
Vr.,  132  : “ When  damages  are  to  be  sustained  by 
the  breach  of  a single  stipulation  and  they  are 
uncertain  in  amount  and  not  readily  susceptible 
of  proof  under  the  rules  of  evidence,  then, 
if  the  parties  have  agreed  upon  a sum  as 
the  measure  of  compensation  for  the  breach  and 
that  sum  is  not  disproportionate  to  the  presuma- 
ble loss,  it  may  be  recovered  as  liquidated  dam- 
ages.,,,  This  is  a very  guarded  statement ; more 
so,  I think,  than  may  be  found  in  many  of  the  ju- 
gQ  dicial  utterances  on  the  subject  and  as  favorable 
to  the  Water  Supply  Company  as  it  would  be  pos- 
sible to  phrase  it.  It  is  stated,  in  somewhat  differ- 
ent terms,  in  a subsequent  case  in  the  same  Court 
by  Judge  Vroom  (Robinson  v.  Centenary  Fund,  39 
Vroom,  723)  : “ The  rule  may  then  be  fairly  stated 

to  be  that  when  the  term  ‘ penalty  ’ is  used  in  the 
agreement  and  a single  act  is  forbidden,  if  upon 
breach  it  is  not  possible  to  ascertain  the  damages, 
then  the  sum  named  as  penalty  may  be  recovered, 
if  on  any  reasonable  view  of  the  case  the  damages 


27 


might  equal  that  sum.”  In  this  latter  case,  not- 
withstanding the  fact  that  the  parties  used  the 
word  “ penalty,”  it  was  construed  to  mean  “ liquid- 
ated damages.”  The  case  is  the  more  noteworthy 
for  that  reason ; for  if  in  this  class  of  cases,  as  in 
every  other,  the  object  be  to  ascertain  the  inten- 
tion, some  regard  must  be  paid  to  the  words  used. 

The  word  “ penalty  ” is  generally  used  in  contradis- 
tinction to  liquidated  damages.  Says  Lord  Escher 
in  Law  v.  Local  Board  of  Redditch,  (1892,)  1 Q.  B.,  ^ 

127,  “ the  contract  goes  on  to  say  that  the  sums  so 
forfeited  may  be  recovered  as  and  for  liquidated 
damages.”  I do  not  think  much  reliance  ought  to 
be  placed  on  those  words  for  even  if  the  sums  were 
called  penalties,  the  same  considerations  might  be 
applicable,  but  I do  not  think  that  they  ought  to 
be  left  out  of  account  altogether. 

The  two  New  Jersey  cases  cited  were  cases  at 
law  and  not  in  equity,  but  that  cannot  make  any 
difference.  The  construction  to  be  put  upon  the 
language  of  contracts  is  the  same  in  both  courts. 

As  to  the  matter  of  consideration  “the  rule”,  says 
Pomeroy  (Eq.  Jur.,  Sec.  926)  “is  entirely  settled, 
that  mere  inadequacy,  that  is  inequality  in  value 
between  the  subject  matter  and  the  price,  is  not 
ground  for  refusing  the  remedy  of  specific  per- 
formance. In  order  to  be  a defence  the  inade- 
quacy must  either  be  accompanied  by  other  in- 
equitable incidents  or  must  be  so  gross  as  to  show 
fraud.”  3Q 

Judged  by  the  foregoing  rules,  I do  not  see  why 
the  sum  named  as  liquidated  damages  for  delay  of 
completion  should  not  be  payable.  There  are  three 
aspects  of  the  matter.  In  two  of  them  there  was 
no  injury  ; in  the  third  there  was.  First,  there 
was  no  pecuniary  injury  because  of  the  City’s  be- 
ing obliged  to  get  its  water  from  the  East  Jersey 
Company.  It  was  consuming,  in  December,  1903, 
less  than  35  millions  of  gallons  a day  (the  exact 


28 


amount  does  not  appear)  and  in  July,  1905,  about 
32i  millions.  If  it  paid  for  this  water  at  the 
schedule  rates  ($36  up  to  25  million  gallons,  $34 
for  the  excess  up  to  30  millions  and  $32  for  the 
excess  over  30  millions  up  to  35  millions)  it  would 
have  paid  more  than  it  was  paying  for  the  water 
received  from  the  East  Jersey  Company,  viz.  $35 
per  million  gallons  for  all  amounts.  It  would  have 
paid  considerably  more  than  it  was  paying  after 
IQ  March  1,  1904,  and  until  the  Rockaway  supply  was 
turned  on,  viz.  at  the  rate  of  $353,800  per  annum. 
The  City  can  claim  no  actual  damage  on  this  score. 
Second,  no  real  injury  resulted  from  the  fact  that 
the  water  supplied  from  December,  1903,  to  May, 
1904,  was  taken  from  the  East  Jersey  Works  above 
Little  Falls,  and  not  from  the  Rockaway.  The 
proof  does  not  show  that  the  East  Jersey  Com- 
pany’s water  was  not  as  pure  and  wholesome  as 
the  Rockaway  water.  It  was  water  that  came,  in 
part,  from  the  Rockaway  lower  down  and  from 
^ other  unpolluted  sources.  The  injury  on  this  head  is 
hardly  more  than  fanciful. 

The  third  ground  of  injury  is,  I think,  substan- 
tial. It  is  that  by  the  delay  in  completing  the 
works,  Jersey  City  was  deprived  of  the  right  of 
selling  its  surplus  water  to  municipalities  and  other 
persons  outside  of  its  corporate  limits.  In  East 
Newark  v.  New  Jersey  Water  Supply  Company  et 
al,  an  interpleader  suit  to  which  Jersey  City  was  a 
gQ  party,  (1  Robb.,  266)  I came  to  the  conclusion  that 
while  Jersey  City  could  not  first  buy  and  then  sell 
water  by  the  million  gallons,  in  other  words,  could 
not  buy,  merely  for  the  purpose  of  selling,  yet  that 
if  it  had  a water  supply  of  its  own  more  than  suffi- 
cient for  its  needs,  it  could  sell  the  surplus  water 
within  the  limits  of  the  counties  of  Hudson  and 
Bergen.  My  opinion  was  concurred,  in  by  the 
Court  of  Errors  on  appeal  (2  Robb.,  783).  Both  this 
and  other  reported  cases  show  not  only  that  Jersey 


29 


City  had  statutory  authority  thus  to  dis- 
pose of  its  suplus  water  but  that  while  it 
was  using  its  former  supply,  obtained  from 
the  Passaic  above  Belleville,  it  exercised  its 
privilege  and  sold  that  surplus  to  various 
towns.  It  appears,  therefore,  that  Jersey  City 
would  have  had  no  authority  to  sell  such  water  as 
it  was  receiving  from  the  East  Jersey  Water 
Company  to  persons  or  towns  outside  of  its  limits, 
even  if,  as  is  not  likely,  the  East  Jersey  Company 
would  have  been  willing  to  furnish  it  for  that  pur- 
pose ; but  if  the  Water  Supply  Company  had  com- 
pleted its  contract  by  December  25,  1903,  it  could 
have,  at  once,  paid  the  price  and  taken  over  the 
works  and  been  in  a position  to  compete  with  the 
East  Jersey  Company  for  the  patronage  of  persons 
and  corporations  in  the  counties  mentioned.  The 
reported  cases  show  that  in  some  instances  Jersey 
City  had  been  getting  as  high  as  $90  per  million 
gallons  for  the  water  thus  supplied.  Now  Jersey 
City  would  have  had  at  least  15  million  gallons  of 
surplus  water  to  thus  dispose  of.  If  she  had  been 
able  to  dispose  of  it  at  even  a $35  advance  per 
million  gallons  she  would  have  received  for  it  $525 
per  day,  the  liquidated  damages  being  $500  per 
day.  I do  not,  of  course,  wish  to  be  understood  as 
asserting  that  it  is  likely  that  she  would  have  at 
once  found  purchasers  for  this  amount  of  water,  or 
for  anything  like  as  much.  But  I do  say  that  it 
was  quite  within  the  bounds  of  possibility  that  she  30 
might  have  found  purchasers  for  a considerable 
amount  of  it  and  at  prices  higher  than  she 
was  herself  then  paying.  It  will,  of  course, 
be  argued  that,  judging  from  her  indispo- 
sition to  take  any  step  towards  raising 
and  tendering  the  price  before  she  commenced  this 
suit,  it  is  unlikely  that  she  would  have  reaped  any 
substantial  benefit  from  her  mere  legal  right  to 
pay  and  take  immediate  possession.  But  it  can 
hardly  be  said  with  any  show  of  plausibility  that 


30 


because  Jersey  City  failed  or  refused  to  accept 
and  pay  for  works  that  were  not,  in  fact,  com- 
plete— I mean  complete  in  the  sense  of  providing 
against  those  sources  of  pollution  which  I find  she 
was  bound  to  provide  against,  therefore,  I am  to 
assume  that  if  the  contract  had  been  fully  and 
completely  performed,  she  would  have  been  equally 
dilatory.  It  would  have  been  for  her  interest, 
avoiding  captious  objections,  if  she  could  have 
found  customers  for  her  water,  to  have  taken  the 
works  at  once. 

It  cannot  be  doubted  that  the  parties  contracted 
together  in  view  of  a known  situation.  Jersey 
City  was,  and  for  many  years  had  been,  a com- 
petitor of  the  East  Jersey  and  of  its  subsidiary  com- 
panies. The  damages  which  Jersey  City  would  suffer 
by  delay  from  this  or  any  other  cause  were  alto- 
gether uncertain  in  amount  and  not,  in  the  words 
of  Justice  Dixon,  “readily  susceptible  of  proof 
9q  under  the  rules  of  evidence.”  It  was  the  very 
situation  in  which  the  courts  have  allowed  the 
parties  to  assess  their  own  damages  in  advance. 
The  original  contracts  stipulating  for  these  dam- 
ages were  prepared  by  counsel  of  great  ex- 
perience. That  it  was  intended  to  assess  these 
damages  in  advance  there  can  be  no  manner 
of  doubt,  for  it  is  expressly  provided  that 
the  sum  agreed  upon  shall  be  paid  “as  liquidated 
damages  and  not  by  way  of  penalty.”  But  the 
30  case  does  not  rest  here,  for  the  works  not  being 
completed  within  the  time  limited,  the  parties  in 
^ their  supplemental  contract  of  March  31,  1902, 
took  cognizance  of  the  fact  that  liquidated  dam- 
ages might  be  insisted  upon  for  past  delays  and  so 
they  use  this  language:  “ Whereas  for  the  purpose 
of  inducing  the  City  to  grant  the  extension  of  time 
hereinafter  mentioned  and  to  waive  all  claims  for 
liquidated  or  unliquidated  damages  for  delay  dur- 
ing such  extended  time  and  as  a consideration 


31 


therefor  ” they  have  secured  the  consent  of  the  East 
Jersey  Co.  to  continue  the  temporary  supply,  &c., 
and  then  they  go  and  expressly  provide  “that  the 
payment  of  $500  per  day  as  liquidated  damages  for 
delay  under  said  contracts  and  specifications  shall 
be  incurred  and  reckoned  only  from  and  after  De- 
cember 25,  1903.” 

The  parties  were  dealing  at  arms  length.  They 
had  competent  advice.  They  were  peculiarly  well 
informed  in  respect  of  the  matters  they  were  con-  ^ 
tracting  about  and  they  were  dealing  with  a sub- 
ject incapable  of  being  reduced  to  a certainty  by 
any  legal  rule  for  the  assessment  of  damages.  No 
oppression,  no  unconscionable  circumstances  are 
shown ; no  inequality  such  as  to  shock  the  con- 
science of  the  Chancellor.  It  cannot  be  asserted 
with  certainty  that  the  damages  named  might  not, 
under  certain  contingencies,  have  equalled  the 
damages  that  might  have  been  actually  sustained. 
Under  these  circumstances,  it  seems  to  me  that  it 
is  the  duty  of  a court  of  equity  to  specifically 
enforce  the  contract  and  not  to  nullify  it. 

One  other  question  remains.  For  what  period 
shall  the  damages  be  assessed  ? The  main  object 
was  to  get  the  fifty  million  gallon  supply.  For 
this  purpose  it  was  not  very  material  that  the  last 
stone  should  have  been  put  in  place,  the  last  bank 
sodded,  and  the  Jast  nuisance  removed.  In  view 
of  the  paramount  object  to  be  attained,  I think 
that  the  words  “ the  contractor  will  be  allowed  two  30 
years  and  six  months  from  the  date  of  contract  to 
complete  the  work  and  furnish  the  water  ” may 
reasonably  be  read  “ to  complete  the  work  so  as  to 
furnish  the  water.”  The  company  began  to  furnish 
it  on  May  23,  1904.  The  works  were  then  cap- 
able of  delivering  fifty  million  gallons  per  day, 
and  so  the  damages  would  be  computed  from  De- 
cern er  25,  1903,  to  that  date,  were  it  not  for  the 
fact  that  the  City,  by  reason  of  legal  proceedings 
taken  in  respect  of  the  tunnel,  retarded  delivery 


32 


five  or  six  days.  These,  I think,  should  be  de- 
ducted. I may  add  that  the  abstract  question  how 
much  water  Jersey  City  will  on  conveyance  ac- 
quire the  right  to  subtract,  either  by  reason  of  its 
riparian  ownership  of  the  lands  conveyed  or  of 
any  legislative  grant,  license  or  authority,  is  not 
raised  by  the  pleadings  and  has  not  been  argued 
or  considered. 

EFFICIENCY  OF  RESERVOIR  AS  SEDIMEN- 
10  TATION  BASIN. 

I now  come  to  what  is,  undoubtedly,  from  a 
sanitary  standpoint,  the  most  important  question 
in  the  cause,  and  that  is  whether  the  Water  Com- 
pany has  provided  Jersey  City  with  a water  supply 
such  as  the  contract  calls  for. 

As  to  the  amount  of  the  supply,  there  can  be  no 
question.  It  is  not  disputed  that  the  works  are 
capable  of  furnishing  fifty  millions  of  gallons  a 
20  day  and  that  if  enlarged  they  will  be  capable  of  fur- 
nishing seventy  millions.  It  is  the  quality  of  the 
supply,  under  certain  conditions,  that  is  disputed. 
Are  the  works  of  such  a character  as  that  they  can 
be  relied  upon  constantly  to  furnish  pure  and 
wholesome  water?  It  is  the  evidence  with  rela- 
tion to  this  question  that  has  filled  most  of  the 
four  thousand  printed  pages  of  testimony.  Much 
of  that  part  of  it,  however,  relating  to  certain 
minor  nuisances  existing  on  the  watershed  at  the 
30  time  the  witnesses  testified  has  become  irrelevant, 
for  the  nuisances  have  now  been  removed. 

On  the  scientific  questions  involved,  the  ex- 
pert witnesses  on  both  sides  agree  in  their  views 
to  an  extent  that  is  all  the  more  surprising,  be- 
cause the  science  of  bacteriology,  originating  in 
the  wonderful  discoveries  of  Pasteur  and  Koch, 
dates  its  origin  from  a period  within  the  last 
thirty  years. 


33 


The  Rockaway  watershed  is  122  square  miles 
in  extent.  The  river  rises  in  the  Longwood 
Valley  to  the  east  of  Lake  Hopatcong.  It  flows 
past  Wharton,  Dover,  Rockaway  and  Boonton  be- 
fore it  reaches  the  reservoir.  The  population  per 
square  mile  above  Boonton  is  169,  regarded  as  a 
very  large  population  for  a watershed  used  to 
furnish  a water  supply. 

In  addition  to  the  towns  named  there  is  the  min- 
ing camp  of  Hibernia  which  lies  upon  a brook  that 
empties  into  the  Rockaway  six  or  seven  miles  above 
the  reservoir.  There  are  also  many  large  factories 
along  the  river.  In  its  natural  state  the  shed  is 
capable  of  furnishing  water  of  excellent  quality. 

As  it  is,  the  water  as  it  enters  the  reservoir  is 
much  contaminated.  The  reservoir  itself,  a little 
over  two  miles  long  and  a mile  wide,  is  an  artifi- 
cial structure,  damming  up  the  river  just  below 
Boonton,  and  its  greatest  depth  is  about  eighty-five 
or  ninety  feet.  It  contains  above  the  lowest  gate 
from  which  water  can  be  delivered,  7,300  million 
gallons.  This  is  a supply  for  146  days  if  fifty  mil- 
lions of  gallons  a day  be  taken,  or  a supply  for  104 
days  if  seventy  millions  be  taken,  assuming  that 
during  those  periods  nothing  flows  in.  But  this  is 
an  impossible  assumption,  for  even  if  no  rain 
should  fall  during  all  those  days  the  ground  water 
would  still,  in  gradually  diminishing  quantities, 
continue  to  flow  first  into  the  river  and  then  into 
the  reservoir  and  thus  add  to  the  water  supply  30 
stored  up. 

The  water  is  conducted  from  the  reservoir  to 
Jersey  City,  part  of  the  way  through  a single  steel 
pipe  six  feet  in  diameter,  and  part  of  the  way 
through  a conduit  and  tunnel  eight  feet  six  inches 
in  diameter,  the  distance  being  22  6-10  miles. 
Reaching  Jersey  City  it  flows,  in  part,  into  two 
small  reservoirs,  and  in  part,  for  the  use  of  Jersey 
City  Heights,  directly  into  the  City  pipes.  There 


34 


is  no  pumping,  the  entire  supply  being  delivered 
by  gravity.  The  height  of  the  reservoir  spillway 
above  high  tide  is  305  1-2  feet  and  the  bottom  of 
the  lowest  gate  or  effluent  pipe  256  6-10  feet.  It 
takes  seventeen  hours  for  water,  at  the  present 
rate  of  consumption,  to  flow  from  the  reservoir  to 
Jersey  City. 

It  is  a fact  admitted  by  all  the  witnesses  on  both 
sides  that  the  water  of  the  river  as  it  enters  the 
jq  reservoir  is  polluted  to  such  an  extent  as  not  to  be 
potable.  The  defendants’  insistment  is,  however, 
that  the  reservoir  acts  as  a sedimentation  basin 
and  that  the  water  when  it  reaches  Jersey  City  is 
free  from  all  objectionable  impurities  and  of  ex- 
cellent quality. 

It  is  not  denied  by  the  City  that  the  water  when 
it  reaches  Jersey  City,  is  ordinarily  good.  It  is, 
however,  insisted  that  it  is  not  always  so  ; that  the 
sedimentation  to  which  it  is  subjected  is  at  times 
imperfect,  and  that  in  certain  conditions  of  wind, 
temperature  and  flow,  particularly  in  times  of 
freshet,  the  water  passes  so  rapidly  from  the 
river,  across  the  reservoir,  to  the  effluent  pipes 
that  it  has  not  time  to  settle  and  that  it  reaches 
Jersey  City  with  many  of  its  impurities  still  in  it. 
The  insistment  is,  therefore,  that  the  reservoir,  as 
a mechanism  for  purification,  is  unreliable  and  not 
such  as  stipulated  for  by  the  contract. 

I shall  consider,  first,  what  the  contract  requires. 
3Q  The  first  clause  provides  as  follows  : “ The  con- 

tractor agrees  to  construct  a new  system  of  water 
works  for  Jersey  City  and  to  supply  said  City 
therefrom  with  pure  and  wholesome  water  in 
strict  conformity  with  said  specifications  and 
his  proposal  under  plan  No.  1.  * * * 

Such  works  shall  be  so  constructed  and 
maintained  by  the  contractor  that  the  water 
delivered  therefrom  shall  be  pure  and  whole- 
some and  free  from  pollution  deleterious  for 
drinking  and  domestic  purposes,  during  the  time 


35 


that  Jersey  City  shall  take  water  by  the  million 
gallons.  If  such  works  and  supply  are  purchased 
by  Jersey  City  they  shall  be  delivered  to  Jersey 
City  as  a completed  operating  plant  free  from  pol- 
lution as  aforesaid.  ” 

The  contractor  thus  refers  the  matter  to  his  pro- 
posals under  plan  No.  1.  Referring  to  this  plan 
(made  part  of  the  contract)  we  read  as  follows  : 

“ there  will  be  tributory  to  the  storage  reservoir 
the  whole  flow  of  the  Rockaway  River,  having  a ^ 
water  shed  and  gathering  grounds  of  1224  square 
miles.”  * * * 

“ The  water  proposed  to  be  furnished  is  pure 
and  wholesome.  The  plan  has  been  prepared  so  as 
to  prevent  all  contamination  thereof  from  any 
source  in  accordance  with  the  specifications.” 

The  specifications  provide  as  follows  : 

“ The  water  to  be  furnished  must  be  pure  and 
wholesome  for  drinking  and  domestic  purposes.” 

“ The  City  will  agree  to  exercise  on  demand  of 
the  contractors  all  its  legal  powers  to  prevent  pol- 
lution of  waters  tributory  to  the  proposed  works, 
but  all  expenses  attendant  upon  the  prevention  of 
such  pollution  shall  be  borne  by  the  contractor.” 

The  contract  further  provides  as  follows  : 

“Eighth.  It  is  further  understood  and  agreed 
that  all  sewers  and  sewage  disposal  works  con- 
structed or  arranged  for  by  the  contractors  to 
prevent  pollution  or  to  carry  off  pollution  existing 
in  the  watershed,  shall  under  said  specifications  30 
and  plans  be  so  constructed  and  arranged  for  by 
him  that  in  the  event  of  the  purchase  of  the  water 
supply  and  plant  by  Jersey  City  under  any  of  the 
options  aforesaid,  the  operation  and  maintenance 
of  such  sewers  and  sewage  disposal  works  for  the 
purposes  aforesaid  shall  not  be  a charge  upon  and 
expense  to  Jersey  City.” 

Finally,  the  specifications  provide  : “All  powers 
possessed  by  the  City  shall  be  exercised  in  aiding 


36 


such  prevention.  The  City  shall  not  be  obliged  to 
accept  any  plant  or  water  therefrom  until  the  sup- 
ply is  free  from  pollution.” 

These  are  the  principal  provisions  on  the  sub- 
ject. There  are  others  of  minor  importance, 
which  do  not  in  anywise  lessen  the  obligation  of 
the  contractor ; if  anything,  they  tend  rather  to 
emphasize  it. 

Contracts  must  have  a reasonable  construction 
and  must  be  read  in  the  light  of  the  surrounding 
^ circumstances.  The  evidence  shows  that  before 
the  contract  in  question  was  executed  the  city  au- 
thorities visited  the  watershed  and  actually  saw 
what  the  conditions  were.  They  knew  that  the 
river  flowed  through  a thickly  populated  region 
and  that  some  pollution  at  the  points  where  the 
population  was  thickest  was  inevitable.  I think  it 
is  quite  plain  that  the  contention  of  counsel  for  the 
City,  that  because  it  is  provided  that  the  supply  is 
to  be  free  from  pollution  and  because  the  river  is 
20  a part  of  that  supply,  therefore,  the  river  must  be 
free  from  pollution,  from  its  source  to  the  point 
where  it  flows  into  the  Boonton  reservoir  is  unten- 
able. In  view  of  the  evidence,  the  City  would  be 
demanding  an  impossibility.  I think  the  contract 
means  that  the  supply,  at  the  time  it  reaches  Jer- 
sey City  and  is  delivered  into  the  reservoir  or  pipes 
there,  must  be  free  from  pollution.  For  example, 
if  after  the  water  should  leave  the  Boonton  reser- 
gQ  voir  but  partially  purified,  it  should  be  subjected 
to  the  action  of  a filter  plant  established  at  any 
point  along  the  route  and  be  there  freed  from  pol- 
lution, I have  no  doubt  the  terms  of  the  contract 
would  be  fully  complied  with. 

Again,  the  requirement  that  the  water  must  be 
pure  and  wholesome  does  not  mean  that  it  shall 
be  absolutely  pure — of  such  purity  as  could  be 
obtained  in  a laboratory — all  that  is  required  is 


37 


that  it  be  “free  from  pollution  deleterious  for 
drinking  and  domestic  purposes.” 

There  is  still  another  observation  that  I must 
make  on  the  argument  addressed  to  me  by  coun- 
sel for  the  Water  Company  and  that  is  this  : It  is 
in  the  event  of  a purchase  by  the  City,  the  supply 
that  is  required  to  be  free  from  pollution  and  not 
the  water  that  has  from  day  to  day  been  thus  far 
delivered.  In  the  words  of  the  contract  “ if  such 
works  and  supply  are  purchased  by  Jersey  City  ^ 
they  shall  be  delivered  to  Jersey  City  as  a com- 
pleted operating  plant,  free  from  pollution  as 
aforesaid.  ” This  supply  must  be  delivered  free 
from  pollution  not  half  the  year  or  three-quarters 
of  the  year,  but  all  the  year  ; not  in  times  of  low 
water  or  moderate  flow,  when  the  reservoir  is 
still  and  sedimentation  uninterrupted,  but  also  in 
times  of  high  wind  and  freshet.  If  the  evidence 
shows  that  the  works  are,  as  they  stand,  adapted 
to  the  delivery  of  pure  and  wholesome  water 
only  during  part  of  the  year,  no  matter  how  ^ 
large  a part,  then  the  contract  has  not  been 
completely  performed.  Suppose,  for  instance,  it 
were  shown  that  on  two  or  three  days  of  the  year 
the  water  at  the  Jersey  City  intake  contained 
typhoid  germs  in  such  number  as  to  cause  epi- 
demic and  that  this  condition  of  things  was  not 
the  result  of  accident  but  the  lack  of  precautions, 
such  as  reasonable  engineering  and  sanitary  prac- 
tice required,  then  I apprehend  the  language  of  c>q 
the  contract  would  not  have  been  satisfied  ; for  it 
says,  “ the  water  proposed  to  be  furnished  is  pure 
and  wholesome,”  “ is  ” being  here  used  in  the  sense 
of  “will  be.”  It  was  not  the  affirmation  of  a_ 
then  existing  fact,  for  the  fact,  as  both  parties 
knew,  was  otherwise.  The  water  of  the  river  was 
then  grossly  polluted.  The  contract  continues, 

“ the  plan  has  been  prepared  so  as  to  prevent  all 
contamination  thereof  from  any  source  in  accord- 


38 


ance  with  the  specifications,”  which  were  that 
“the  water  to  be  furnished  must  be  pure  and 
wholesome  for  drinking  and  domestic  purposes.” 

Now,  it  was  argued  for  the  Water  Company 
that  the  contract  should  be  construed  in  the  light 
of  conditions  then  existing  and  that  Jersey  City 
must  have  known  that  if  it  accepted  the  Rockaway, 
it  would  get  water  somewhat  polluted.  This  argu- 
ment would  be  unanswerable  if  the  contract  had 
jq  been  only  that  the  contractor  would  impound  the 
water  in  a large  reservoir  and  deliver  it  to  Jersey 
City.  If  Jersey  City  got  polluted  water  it  would 
get  just  what  it  had  bargained  for.  But  both  par- 
ties knew  that  the  Rockaway  at  and  below  Dover 
was  highly  polluted.  The  contractor  knew  it  better 
than  the  city.  The  evidence  is  that  the  stream  as  it 
flowed  past  Dover  was  then  little  better  than  an 
open  sewer.  It  was  in  view  of  these  known  condi- 
tions that  the  parties  contracted,  and  what  the  con- 
tractor expressly  contracted  to  do  was  to  deliver 
pure  and  wholesome  water  from  a polluted  stream. 
“ The  plan,”  he  says,  “ has  been  prepared  so  as  to 
prevent  all  contamination  from  any  source.” 

The  company  proceeded  on  the  theory  that  it 
must  furnish  pure , not  on  the  theory  that  it  could 
furnish  polluted  water.  It  did  not  wait  to  see 
whether  the  pollution  at  Dover  and  other  places 
would  make  itself  apparent  at  Jersey  City.  It 
began  at  once  to  remove  many  of  the  sources  of 
30  pollution  ; and  the  only  question  is  whether  it  has 
gone  far  enough. 

There  is  one  other  remark,  in  order  to  avoid 
misapprehension,  I wish  to  make  before  consider- 
ing the  evidence.  The  Company  is  not  bound  to 
provide  against  that  which  may  arise  in  the  future  ; 
in  other  words,  against  future  conditions.  Jersey 
City  will  have  to  provide  against  them  as  occasion 
may  require.  For  example,  if  the  present  popula- 
tion of  the  watershed  does  not  create  a situation 


39 


calling  for  the  installation  of  a filter  plant,  the 
Company  is  not  obliged  to  furnish  it,  merely  be- 
cause, when  the  population  increases,  such  a plant 
may  be  a necessity. 

To  sum  up,  the  contract  requires  that  the  plant 
(using  that  word  in  its  broadest  sense)  shall  at  all 
times  and  on  all  occasions  (barring  accidents  and 
occurrences  that  could  not  by  the  exercise  of  rea- 
sonable foresight  and  care  be  provided  against) 
be  constructed  or  adapted  to  use  so  as,  in  the  ^ 
words  of  the  contract,  “to  prevent  all  contamina- 
tion from  any  source.  ” The  thing  to  be  delivered 
is  a plant  capable  of  preventing  contamination 
from  any  source,  at  any  time,  under  any  condi- 
tions likely  to  occur,  and  not  a plant  that  may  be 
effective  under  favorable  conditions  for  a part  of 
the  year  but  ineffective  at  other  times.  As  this  is 
a very  important  part  of  the  case,  I may  be  per- 
mitted to  illustrate  further.  Drought  in  summer 
is  no  uncommon  occurrence  ; heavy  rain  following 
drought  is  no  uncommon  occurrence  ; high  winds  ^ 
accompanying  rain  is  no  uncommon  occurrence. 

If  the  plant  be  capable  of  delivering  pure  and 
wholesome  water  in  ordinary  weather  but  not  on 
the  happening  of  the  occurrences  mentioned, 
either  separately  or  together,  then  I take  it  that 
the  plant  would  not  be  so  completed  as  to  meet 
the  requirements  of  the  contract. 

With  this  view  of  the  legal  aspects  of  the  case, 

I proceed  to  a consideration  of  the  evidence.  It  is 
so  voluminous  that  it  will  not  be  possible,  within 
the  limits  of  an  opinion,  to  do  more  than  summa- 
rize its  more  important  features. 

No  fault  is  found  with  the  construction  of  the 
reservoir  as  a piece  of  masonry  It  is  admitted  to 
have  been  extremely  well  built.  It  contains  as 
much  water  as  was  bargained  for.  It  is  hardly 
conceivable  that  up  to  the  limit  of  fifty  million  gal- 
lons a day  it  could  ever,  under  any  circumstances 
of  drought,  be  exhausted.  The  proof  shows,  too, 


40 


that,  in  general,  the  reservoir  does  act  effectively 
as  a sedimentation  basin  and  that  when  the  water 
reaches  Jersey  City  it  is  of  excellent  quality.  It 
has  been  on  trial  since  May  23,  1904,  and  up  to  the 
close  of  the  evidence  last  June  (1907)  the  plant 
has,  for  much  the  greater  part  of  the  time,  deliv- 
ered water  satisfactory  in  quality.  The  statistics 
show  that  since  Jersey  City  has  ceased  to  take  its 
water  from  the  lower  Passaic,  there  has  been  a 
IQ  great  decrease  in  the  number  of  typhoid  cases 
and  that  the  yearly  average  of  deaths  from  that 
disease  has,  for  the  last  four  years,  compared 
favorably  with  that  of  those  cities  the  purity  of 
whose  water  supply  is  undoubted. 

This,  at  first  blush,  seems  to  be  pretty  satis- 
factory evidence  of  the  effective  working  of  the 
plant.  For  the  reasons  that  I am  about  to  state,  it 
is  not  conclusive.  It  does  not  necessarily  follow 
that  because  the  works  may  be  capable  of  furnish- 
2q  ing  from  35  to  38  millions  of  gallons  of  pure  and 
wholesome  water,  therefore  it  is  capable  of  fur- 
nishing 50  millions  ; nor  does  it  necessarily  follow 
that  because  the  water  has  been  pure  and  whole- 
some in  the  practical  absence  of  water  borne  dis- 
eases on  the  watershed,  therefore,  the  water  might 
not  be  contaminated  if  such  diseases  prevailed. 

Within  the  last  thirty  years  science  and  ex- 
perience have  revolutionized  the  ideas  of  sanitary 
experts  on  the  subject  of  water  supply.  Repeated 
30  instances  here  and  in  Europe  have  shown  that 
water  admirable  in  appearance  may  contain  the 
germs  of  typhoid  and  of  other  water  borne  dis- 
eases, in  such  numbers  as  to  cause  epidemic.  It 
used  to  be  a favorite  theory  of  sanitary  and  hy- 
draulic experts  that  running  water  purified  itself. 
Experience  has  shown  that  it  is  not  running  water, 
but  still  water  that  tends  to  do  this.  It  is  agreed 
by  the  experts  on  both  sides  that  if  water  be 
allowed  to  stand  for  a sufficient  length  of  time, 


41 


whatever  pathogenic  germs  may  be  contained  in  it 
will  die  or  disappear.  None  of  these  experts  put 
the^time  under  forty  or  fifty  days,  and  several  of 
them  do  not  regard  six  months  as  too  long. 
Disease  germs  have  been  carefully  studied  by  bac- 
teriologists who  have,  among  others,  been  able  to 
isolate  the  typhoid  germ  ; cultivate  it  and  study 
its  peculiarities.  Its  proper  habitat  is  found  to  be 
only  in  the  human  intestine.  There  it  thrives  and 
multiplies,  as  nowhere  else,  except  under  artificial 
culture.  Millions  of  these  germs  may  be  dis- 
charged by  a single  patient  and  some  of  them, 
the  hardiest,  will  survive  in  water  for  weeks  and 
months.  Consequently,  if  the  faeces  of  a patient 
be  allowed  to  go  into  a stream  from  which  a 
water  supply  is  taken  they  may  be  carried  to  the 
consumer  and  if  taken  through  the  mouth,  may, 
in  their  passage  through  the  intestine,  attach 
^themselves  to  it  and  multiply  ; and  after  a period 
of  incubation  (about  ten  days)  the  patient  begins 
to  exhibit  those  symptoms  which  are  characteris- 
tic of  the  disease.  This  is  no  theory.  It  is  an 
established  fact  admitted  by  all  sanitary  experts. 

The  Plymouth  case,  mentioned  several  times  in  the 
course  of  the  testimony,  is  a remarkable  illustra- 
tion. The  faeces  of  a single  patient,  thrown  upon 
the  ground  during  the  late  fall  and  frozen  there, 
were  in  the  spring  washed  into  a brook  which  con- 
tributed to  a water  supply,  and  one-tenth  of 
the  entire  population  contracted  the  disease.  In  3Q 
this  case  enough  of  the  germs  to  produce  the  re- 
sult survived  in  the  ice  for  a period  of  four 
months.  Several  other  striking  instances  are 
mentioned  in  the  evidence.  Doctor  Leal, 
one  of  the  officers  of  the  defendant  corpora- 
tion, himself  an  eminent  sanitary  expert, 
testifying  to  the  time  the  germs  will  sur- 
vive outside  the  human  body,  says  : “ I think 
within  the  first  five  days  fifty  per  cent,  would 
die  ; I think  within  ten  days  ninety  per  cent,  would 


42 


die  ; I think  within  three  weeks  ninety-nine  per 
cent,  would  die  and  the  other  per  cent,  might  live 
for  several  months.  ” This  statement  is  not  dis- 
sented from  by  the  experts  for  the  City.  Thus, 
Mr.  Whipple  says  : “ If  we  assumed  a certain 

number  of  germs  put  into  the  Rockaway  River 
water,  they  would  die  out  somewhat  rapidly  at 
first.  I mean,  many  of  them  would  die  out  rapidly 
and  some  would  live  longer  ; others  would  live  still 
longer  ; and  a few  might  live  for  a number  of 
months  but  the  number  that  did  so  remain  would  be 
small  compared  with  the  number  that  was  put  in.  ” 
The  experts  for  the  City,  however,  point  out  that 
where  it  concerns  a matter  of  millions  in  each  stool 
the  residuum  surviving  would-be  by  no  means  insig- 
nificant. Mr.  Whipple  says  that  he  has  seen  urine 
that  contained  a billion  germs  in  a single  discharge. 

The  theory  is,  that  when  these  germs  escape 
from  their  natural  habitat  in  the  intestine  their 
environment  becomes  unfavorable  and  hence  they  * 
20  tend  to  die  off.  Professor  Sedwick,  of  the  Boston 
Institute  of  Technology,  thus  states  the  matter  : 

“ Once  they  begin  to  travel  through  soil  pipes  and 
sewers,  their  food  becomes  scarcer  and  less  avail- 
able, and  when  finally  they  mingle  with  the  waters 
of  the  lake,  which  are  relatively  pure  and  destitute 
of  organic  matters,  their  pabulum  must  be  dis- 
tinctly scanty.  At  the  same  time,  in  sewage  and 
in  the  lake,  they  are  subject  to  the  influence  of 
gravity  which  tends  to  draw  them  down  into  the 
deeper,  quieter  layers  and  finally  into  the  mud  at 
the  bottom,  while  predatory  infusoria  running 
through  the  water,  may  devour  them  altogether. 
Lastly,  if  they  tend  to  float  or  linger  on  the  sur- 
face, they  may  there  suffer  from  the  germicidal 
action  of  the  rays  of  light  and  perish.”  In  addi- 
tion to  what  is  here  stated,  several  of  the  witnesses 
are  of  opinion  that  the  longer  they  remain  out  of 
the  intestine  the  weaker  and  less  virulent  they  be- 


43 


come  and  therefore  the  less  likely  to  cause  disease. 

Now  it  is  on  this  theory  that  still  water  is  seen 
to  be  a better  purify er  than  running  water,  but  in 
order  that  still  water  may,  so  to  speak,  do  its  work, 
it  must  have  time.  A running  mountain  stream 
may  carry  the  germ  and  be  the  vehicle  of  disease 
fifty  miles  below  the  point  at  which  it  was  dis- 
charged into  the  water.  Hence  the  theory  of  sed- 
imentation. 

It  may  be  asked  why,  if  the  entire  body  of  water  -j^ 
be  infected,  everyone  who  drinks  it  is  not  made 
sick.  The  answer  is  that  some  subjects  are  more 
susceptible  than  others ; that  the  majority  of 
healthy  persons  appear  to  have  the  power  to  resist 
the  attacks  of  the  micro-organisms  or  to  neutralize 
their  poisons. 

There  is  no  doubt  that  in  a certain  sense  and  to 
a certain  extent  running  water  does  tend  to  purify 
itself.  It  is  matter  of  common  observation  that 
if  foreign  matters,  whether  factory  waste,  sewage 
or  surface  water,  be  discharged  into  a stream, 
that  stream  will  gradually  clear.  The  heavier  parti- 
cles, held  in  suspension,  tend  to  sink  because  of  their 
greater  specific  gravity.  The  substances  held  in 
solution  may  undergo  chemical  reactions  among 
themselves  and  be  precipitated  ; the  sunlight  and 
the  oxygen  of  the  air  exert  their  influence  and  so 
it  comesTo  pass  that  after  water,  not  too  highly 
polluted,  has  flowed  for  a considerable  distance  it 
is,  to  all  appearances,  clear  and  pure.  Now,  what  30 
bacteriology  has  added  to  our  stock  of  knowledge 
is  this  : that  water  apparently  pure  may  be  in- 
fected wflth  germs  that,  introduced  into  the  sys- 
tem, produce  disease  and  death  and  that  running 
water  will  not  kill  them.  It  will  rather  serve  as  a 
vehicle  to  transport  them  long  distances.  How 
many  diseases  are  thus  water  borne  is  not  as  yet 
definitely  known.  The  more  recent  investigations 
seem  rather  to  add  to  their  number  than  diminish 


44 


it.  Prof.  Sedgwick  says  : “We  have  had  a good 
deal  of  new  light  in  the  last  two  or  three  years, 
and  as  I said  in  my  direct  testimony,  from  the  di- 
arrhoeal  group,  including  typhoid,  cholera,  gastro- 
enteritis, dysentery,  &c.,  we  have  got  considerable 
evidence  that  perhaps  nearly  all  infectious  dis- 
eases, the  germs  of  which  might  find  their  way  in- 
to sewage  and  so  into  water,  may  be  to  a little  ex- 
tent carried  by  water.  ” 

Professor  Winslow  thinks  that  the  germ  of  para 
typhoid  fever  may  be  carried  by  water  and  that 
epidemics  of  diarrhoeal  disease  may  be  traced 
to  it.  Dr.  Leal  admits  that  cholera,  no  less  than 
typhoid,  is  a water  borne  disease  ; he  thinks  that 
diarrhoea  may  be  caused  by  water,  though  not  a 
water  borne  disease,  and  he  says  that  he  cannot 
say  whether  dysentery  is  a water  borne  disease  or 
not  and  he  does  not  believe  that  anyone  else  can. 

Throughout  the  testimony  will  be  found  con- 
stant reference  to  the  presence  of  b.  (bacilli)  coli 
in  the  water.  These  exist  in  large  numbers  in  the 
intestines  of  warm  blooded  animals,  including 
man.  They,  or  most  of  them,  do  not  cause  disease. 
One  of  the  bacteriological  methods  of  determin- 
ing the  purity  of  a water  supply  is  to  determine 
the  number  of  these  b.  coli  in  a cubic  centimeter 
(c.  c.)  of  the  water  or  in  some  decimal  part  thereof. 
If  the  number  is  found  to  be  large,  it  indicates  the 
presence,  to  an  undesirable  extent,  of  animal  mat- 
2Q  ter,  discharged  from  the  intestines.  It  does  not 
necessarily,  or  even  usually,  prove  the  presence  of 
disease  germs.  It  merely  shows  that  if  the  ani- 
mal, including  man,  that  gave  off  the  b.  coli,  hap- 
pened to  have  some  water  borne  disease,  then  the 
same  water  which  conveyed  the  b.  coli  would 
probably  bring  the  dangerous  germ  ; or,  putting  it 
in  another  way,  it  would  show  that  the  method  of 
purification  employed  had  not  freed  the  water 
from  intestinal  products  ; that  they  had  neither 


45 


settled  nor  been  destroyed  in  their  progress  toward 
the  consumer.  These  b.  coli  are  exceedingly 
minute.  The  typhoid  bacillus  is  one-twenty-five- 
thousandth  of  an  inch  in  diameter  but  several 
times  longer  than  it  is  wide.  It  and  the  b.  coli 
cannot  be  seen  by  the  naked  eye  until  they  are- 
in  bacteriological  phrase — cultivated.  The  culti- 
vation consists  in  putting  a measured  portion  of 
the  suspected  water  on  a plate  containing  some 
substance  upon  which  they  will  thrive  and  in-  ^ 
crease.  If  present,  they  will  multiply  with  great 
rapidity.  Each  bacillus  will  divide  and  grow  and 
sub-divide  until  a “ colony  ” appears  on  the  plate, 
easily  discernible  by  the  naked  eye.  The  number 
of  colonies  counted  on  the  plate  indicates  the  num- 
ber of  bacilli  in  the  given  quantity  of  water. 

By  this  method  alone  the  typhoid  bacillus  could 
not  be  differentiated  from  the  other  and  harmless 
bacilli.  Such  differentiation  is  made  by  further 
tests  unnecessary  to  describe.  • 

Reference  will  also  be  made  to  bacteria.  These, 
as  I understand  the  evidence,  are  microscopic  or- 
ganism, some  harmful,  most  of  them  harmless, 
found  in  water,  and  whose  count  affords  an  indi- 
cation of  its  purity.  The  term  includes  b.  coli, 
but  is  much  more  comprehensive. 

We  have  now  reached  a point  when  the  precise 
question  at  issue  can  be  understood.  The  conten- 
tion on  the  part  of  Jersey  City  is  that  the  con- 
formation of  the  reservoir  is  such  that  in  times  of  qq 
freshet  polluted  water  will  pass  so  rapidly  from 
the  river  to  the  reservoir  outlet  that  there  will  be 
no  time  for  proper  sedimentation  ; that  if  there  are 
pathogenic  germs  in  the  river  when  it  enters  the 
reservoir  they  will  be  carried  across  it  in  two  or 
three  days,  and  be  borne  to  Jersey  City  within 
seventeen  hours  after  they  leave  the  reservoir 
gate. 

It  will  be  proper,  in  the  first  place,  to  consider 
more  particularly  the  character  of  the  water  to  be 


46 


purified.  The  Rockaway  is  a comparatively  small 
stream,  with  enormous  variations  of  flow.  Its 
lowest  flow,  as  shown  on  the  Cook  chart  for  the 
year  1905-6,  was  32,000,000  ; its  highest,  899,000,000 
gallons  per  diem.  Of  the  four  towns  that  it 
passes,  the  most  considerable  is  Dover,  with  a 
population  of  ^ . Dover  is  built 

up  on  both  sides  of  the  stream  and  in  places  the 
ground  slopes  rapidly  toward  it.  It  has  no  sewer 

IQ  system  and  the  contents  of  the  cesspools,  unce- 
mented, leech  into  the  adjacent  soil.  Boonton, 
built  upon  the  side  of  a high  hill,  with  its  natural 
drainage  toward  the  river  and  its  factories  on  the 
Cooper-Lord  property  almost  overhanging,  are 
within  a mile  or  two  of  the  reservoir.  Smaller 
towns  and  factories  are  found  along  the  streams 
and  its  tributaries.  The  droppings  of  animals  on 
the  numerous  roads  throughout  the  watershed, 
and  the  water  flowing  off  the  manured  fields,  are 
likewise  sources  of  pollution.  There  is  compara- 
u tively  little  forest  and  except  in  the  Longwood 
Valley  not  much  unused  land.  These  conditions 
are  in  contrast  with  those  obtaining  on  the  Pequan- 
nock.  In  view  of  this  situation,  it  will  not  be  dif- 
ficult to  understand  why  the  experts  on  both  sides 
agree  that  the  water  as  it  enters  the  reservoir  is  not 
potable. 

The  experts  tell  us  just  how  the  water  is  con- 
taminated. Mr.  Whipple,  the  City’s  expert,  says  : 

3Q  “ I should  say  the  water  was  contaminated  to  a 
considerable  extent  for  the  reason  that  the  num- 
ber of  bacilli  was  very  large  for  a river  of  this 
character  and  that  the  number  of  coli  present  was 
very  large  and  incidentally  that  the  amount  of 
chlorine  was  above  normal  for  that  region  and 
also  because  the  water  has  continuously  a mouldy 
odor.  ” 

Dr.  McLaughlin  was  the  bacteriologist  con- 
stantly employed  by  the  Water  Company  to  test 
the  quality  of  the  water,  both  where  it  flowed  into 


47 


the  reservoirand  at  the  tap  at  Jersey  City.  His 
analyses  do  not  differ  materially  from  those  of 
Mr.  Whipple.  On  his  direct  examination,  counsel 
asked  the  question  : Q.  Would  it  be  safe  in  your 
opinion,  Doctor,  to  deliver  water  from  the  Rocka- 
way  River  at  any  point  below  the  town  of  Dover 
and  above  the  headwaters  of  the  Boonton  reser- 
voir— that  is,  from  the  plain  river — and  send  it  to 
consumers  without  purification?  A.  It  would  not 
be  possible.  It  would  be  dangerous.  ^ 

Dr.  Leal,  testifying  on  behalf  of  the  Water 
Company,  says  in  answer  to  the  question  : 

Q.  Doctor,  in  your  opinion,  is  the  flowing  water  of 
any  river  in  a populated  district  proper  to  be  taken 
for  a potable  water  supply,  without  first  being 
brought  into  a reservoir,  or  in  some  other  way 
treated  ? 

A.  “ No,  it  would  be  utterly  unsafe  and  unjust 
to  doit.  -To  take  water  from  a running  stream, 
draining  a populated  watershed  and  delivering  it 
directly  to  the  consumer— that  would  be  danger- 
ous and  inexcusable. ” Professors  Winslow  and 
Sedgwick  and  Mr.  Kuichling  testify  substantially 
to  the  same  effect. 

We  start  out,  then,  with  the  admitted  fact  that 
the  water  of  the  Rockaway  as  it  enters  the  reser- 
voir contains  germs  that,  if  taken  into  the  system, 
are  a menace  to  health.  The  question,  then,  is 
whether  the  reservoir  itself  is  an  effective  instru- 
mentality for  getting  rid  of  them.  The  Company  30 
has  provided  no  other.  As  I have  already  said,  it 
takes  only  seventeen  hours  for  the  water  to  flow 
through  the  pipes  from  the  gate  house  or  outlet  of 
the  reservoir  to  Jersey  City. 

Now  it  is  manifest  that  if  the  river  water,  in 
considerable  quantities,  can  pass  from  the  river  to 
the  gate  house  in  two  or  three  days,  or  even  a 
week  or  two,  it  may  carry  with  it  living  germs, 
dangerous  to  life  and  health,  if  those  germs  have 
been  discharged  into  the  stream. 


48 


The  City  has  sought  in  various  ways  to  show 
that  the  water  does  so  pass.  I will  first  advert  to 
the  shape  of  the  reservoir  and  to  the  points  at 
which  the  water  enters  and  leaves  it.  The  follow- 
ing sketch  taken  from  the  sanitary  map  suffi- 
ciently depicts  the  situation: 


10 


f 


G*/*he  House 


50 


The  bridge  across  the  river  is  about  9,200  feet 
from  the  Parsippany  Dike  end.  It  is  about  3,200 
feet  from  the  gate  house  and  3,400  feet  from  the 
spillway  or  overflow.  The  distance  from  the  gate 
house  to  the  spillway  is  about  1,300  feet.  From  a 
bacteriological  standpoint  it  is  unfortunate  that 
the  exit  of  the  water  is  not  at  or  near  the  Parsip- 
pany Dike.  It  would  then  have  flowed  through 
the  whole  length  of  the  reservoir  and  more  time, 
IQ  necessarily,  would  have  been  had  for  sedimenta- 
tion. But  at  the  Parsippany  end  it  is  shallow  and 
if  the  water  were  discharged  there  Jersey  City 
would  not  have  the  benefit  of  the  water  stored  for 
times  of  drought.  Whether  the  water  will  flow 
from  the  mouth  of  the  river  to  the  gate  house  in 
a longer  or  shorter  time  will  depend  largely  upon 
conditions.  It  might  occur  to  anyone,  at  first 
blush,  that  because  the  water  is  being  constantly 
discharged  at  the  gate  house  there  would 
be  a constant  current  between  the  two 
" points  mentioned.  But  the  aperture  through 
which  it  is  discharged  is  only  three  feet  long  by 
six  inches  wide.  The  current  created  in  so  con- 
siderable a body  of  water  by  such  an  aperture 
would  necessarily  be  very  small.  The  water,  of 
course,  would  flow  along  the  line  of  least  resist- 
ance. Some  of  it,  for  that  reason,  would,  when  the 
reservoir  was  full,  flow  toward  the  spillway.  The 
greater  the  volume  of  water  in  the  river  the 
3Q  greater  would  be  this  flow.  From  an  inspection  of 
the  Cook  diagram  of  the  flow  of  the  river  for  the 
year  1906,  I should  judge  that  its  mean  flow 
throughout  the  year  was  over  one  hundred  thou- 
sand gallons  per  day.  But  the  river  varies  greatly. 
On  nine  occasions  in  that  year  for  a period  of  sev- 
eral days  at  a time  its  flow  exceeded  350  millions, 
and  on  two  occasions,  800  millions.  From  35  to  38 
millions  are  taken  by  the  pipe  and  so  on  such  oc- 
casions the  greater  current  would  be  toward  the 


51 


spillway.  It  is  at  least  certain  that  the  water 
that  enters  the  river  would,  because  of  this  situ- 
ation, tend  rather  to  flow  toward  the  north- 
easterly end  of  the  reservoir  than  toward  the 
Parsippany  Dike,  and  this  tendency  would  be 
aided  by  the  contour  of  the  bottom.  The 
foregoing  diagram  shows  in  a rude  way  the  ancient 
bed  of  the  stream,  and  so,  the  deepest  part  of  the 
reservoir.  It  is  between  the  spillway  and  the  gate 
house,  but  nearer  the  spillway.  The  contour  lines 
shown  on  one  of  the  maps  indicate  the  existence 
of  comparatively  high  ground  to  the  right  of  the 
ancient  river  bed,  shortly  after  it  flows  into  the 
reservoir  and  this,  too,  would  tend  to  divert  all 
but  the  upper  stratum  of  the  water  from  the  Par- 
sippany end.  It  is  to  be  borne  in  mind,  however, 
that  even  when  the  river  is  discharging  into  the 
reservoir  one  hundred  millions  of  gallons  a day  it 
encounters  a volume  of  over  seven  billions  of  gal- 
lons, or  seventy  times  its  own  bulk.  When  a very 
large  volume  of  water  is  flowing  in  the  river  there 
would  be  a tendency  to  run  down  hill,  so  to  speak, 
and  spread  out  in  every  direction.  But  this  ten- 
dency, too,  might  be  counteracted  by  the  wind. 

4 difference  of  temperature  between  the  upper 
and  the  lower  strata  of  the  water  would  originate 
local  currents  and  the  wind  would  cause  others. 

It  will  thus  be  seen  that  the  problem  presented  is 
exceedingly  complex ; so  complex  that  Mr.  Her- 
ing,  a noted  hydraulic  engineer,  called  by  the  30 
Company,  declared  himself  unable  to  solve  it.  It 
was  attempted  by  means  of  floats,  of  varying 
length,  sunk  beneath  the  water  at  varying  points 
to  determine  how  the  currents  chiefly  ran.  These 
experiments  were  not  carried  on  for  such  a 
length  of  time  and  under  such  conditions  as  to 
prove  anything  very  definitely.  Mr.  Hering  said 
it  was  his  firm  conviction  that  float  experiments  do 
not  give  a true  idea  of  currents.  Counsel  did  not 
attempt  to  obtain  from  him,  except  in  this  general 


LIBRARY 

UN!VERSITV.  ILLINOIS 
UK.  \ 


52 


way,  his  opinion  of  the  result  of  the  experiments 
of  Mr.  Bardner,  who  made  them  for  the  company, 
and  of  Mr.  Watson,  who  made  them  for  the  City, 
but  Mr.  Kiuchling,  the  City’s  engineering  expert, 
said,  “The  experiments  of  January  16  [Mr.  Wat- 
son’s] of  which  there  were  two,  and  the  first  six 
experiments  of  December  5,  1906,  [Mr.  Bardner’s] 
show  conclusively  that  there  was  a persistent  sub- 
surface current  from  the  mouth  of  the  river  where 
IQ  it  enters  the  reservoir,  down  stream  and  across 
the  reservoir  and  thence  down  the  reservoir  to  the 
dam  and  gate  house.  In  both  of  these  cases  the 
direction  of  the  wind  was  opposite,  or  nearly  oppo- 
site, to  that  of  the  float.  * * * The 

figures  show  an  enormously  wide  difference  be- 
tween these  actual  observed  facts  and  the  opinion 
expressed  by  Mr.  Hering  on  purely  theoretical 
grounds  as  to  the  rate  of  speeds  of  currents  in  the 
reservoir.”  The  allusion  here  is  to  Mr.  Her- 
ing’s  statement  that  under  certain  hypotheti- 
^ cal  conditions  (which,  however,  he  admitted 
would  not  be  likely  to  exist  in  fact)  the 
water,  if  in  a condition  of  quiescence,  would 
take  80  days  to  pass  from  the  river  to  the  gate  house. 
The  value  of  this  statement  by  Mr.  Hering,  as 
proof  for  the  Company,  is  greatly  lessened  by  his 
further  statement:  “ In  times  of  flood  the  condition 
would  be  quite'different.  * * * I have 

not  been  able  to  satisfy  myself  as  to  just  how 
3Q  many  days  it  would  take  the  water  to  flow  from 
the  mouth  of  the  river  to  the  intake  under  these 
freshet  conditions,  because  it  is  an  extremely  com- 
plicated problem,  but  I would  say  it  would  take  a 
number  of  days;  just  how  many,  I could  not  say.” 
Q.  More  than  a week?  A.  I cannot  change  my 
answer.  I don’t  know  whether  it  would  be  more 
or  less  than  a week.  That,  of  course,  only  applies 
to  those  times  when  freshet  water  goes  into  the 
reservoir  in  large  flows. 


53 


All  the  experiments  made  by  Bardner,  except 
the  last  series  taken  on  December  14,  were  made 
when  the  wind  was  light  and  but  little  water  flow- 
ing in  the  river.  On  December  14,  however,  the 
volume  of  water  flowing  in  the  river  was  much 
greater  (134  million  gallons)  and  there  was  a 
steady  breeze  blowing  all  day  from  the  east,  north- 
east, that  is,  directly  from  the  dam  to  the  river.  It 
is  unfortunate  that  he  did  not  then  put  his  floats 
into  the  water  between  the  river  and  the  gate  ^ 
house  or  spillway,  as  Mr.  Watson  did  later.  He 
merely  contented  himself  with  putting  them  in  the 
middle  of  the  lake  where  they  went  with  the  wind 
and  proved  practically  nothing. 

This  much  would  seem  to  be  certain  : That  the 
current,  such  as  it  is,  on  the  principle  that  the 
water  goes  along  the  line  of  least  resistance, 
necessarily  tends  to  flow  from  the  mouth  of  the 
river  toward  the  gate  house  and  spillway.  If  more 
water  is  flowing  over  the  spillway  than  through 
the  gate  house  then  the  current  would  be  more 
pronounced  in  that  direction.  If  the  wind  is 
blowing  hard  from  the  northwest  this  tendency 
would  be  augmented.  The  larger  the  volume  of 
water  flowing  in  the  river  the  stronger  the  cur- 
rent. It  nowhere  appears  in  the  testimony  how 
far  down  these  currents  would  extend,  so  far  as 
they  are  set  in  motion  by  the  passage  of  the  water 
toward  the  spillway.  It  is  as  least  probable  that 
the  friction  of  the  upper  currents  upon  the  lower,  30 
created  either  by  a considerable  wind  or  by  a 
freshet,  would  tend  to  set  the  lower  currents  in 
motion  in  the  same  direction,  in  accordance  with 
the  result  of  Mr.  Kuichling’s  observations  in  Lake 
Michigan,  and  that  these  currents  would  be  di- 
rected toward  the  gate  house  rather  than  toward 
the  Parsippany  dam. 

There  is  another  fact  which  seems  to  me  to  pos- 
sess some  significance.  Mr.  Ccok,  hydraulic  engineer 
by  profession,  a gentleman  of  much  experience, 


having  the  actual  superintendence  of  the  reservoir 
and  more  famiiiar  with  the  conditions  existing 
there  than  anyone  else,  did  not  testify  on  this  im- 
portant subject,  although  he  was  called  more  than 
once  on  other  subjects.  Nor  did  Mr.  Gardner,  the 
president  of  the  defendant  company,  also  an  engi- 
neer. What  Dr.  Leal  and  Dr.  McLaughlin,  neither 
of  them  experts  so  far  as  this  matter  is  concerned, 
said  I shall  consider  later  on,  when  I contrast  their 
evidence  with  that  of  the  bacteriologists  called  by 
the  City. 

There  is  a fact  in  this  connection  which  seems 
to  me  to  be  very  strong  indeed.  I called  attention 
to  its  significance  on  the  argument  and  counsel 
for  the  Water  Company  could  not,  so  far  as  I 
could  see,  explain  it  away.  In  the  freshet  of  1893 
and  during  108  consecutive  hours,  or  nearly  four 
and  a half  days,  there  was  discharged  at  Boon  ton 
9,885  million  gallons.  The  reservoir  contains, 
above  the  lowest  efflaentpipe,  7,300  million  gallons. 
What  would  have  become  of  the  water  in  the  re- 
servoir had  it  then  been  full  ? It  is  absurd  to  sup- 
pose that  this  immense  volume  of  water  would 
have  flowed  over  the  top  of  the  water  already 
there  and  left  it  undisturbed.  It  would  undoubt- 
edly have  mingled  with  it  and  very  largely  dis- 
placed it.  There  can  be  no  question  that  in  two 
or  three  days  some  of  the  inflowing  water  would 
have  reached  'Jersey  City.  It  will,  no  doubt,  be 
said  that  this  was  an  exceptional  flow,  but  the 
fact  is  that  a very  similar  freshet  occurred  only  a 
year  or  two  before. 

I will  take,  however,  what  was  admittedly  a nor- 
mal year ; in  fact,  a year  of  very  moderate  and 
very  even  flow.  The  flow  for  1906  is  illustrated  by 
Mr.  Cook  on  a diagram.  It  appears  therefrom 
that  on  March  4th  and  5th  it  was  about  900  mil- 
lion gallons  per  day;  on  March  6th,  600  hundred 
millions  and  on  March  7th,  400  millions.  In  other 


55 


words  nearly  2,800  millions  of  gallons  flowed  into 
the  reservoir  during  those  four  days.  This  was 
considerably  more  than  one-third  the  contents  of 
the  reservoir  above  the  lowest  point  of  discharge. 

Now  considering  with  what  velocity  the  freshet 
must  have  entered  the  stream  and  how  the  contour 
of  the  bottom  must  have  given  direction  to  its  cur- 
rents ; how  the  friction  of  the  upper  strata  would 
have  acted  upon  the  lower,  is  it  conceivable  that  a 
considerable  portion  of  the  river  water  would  not  ^ 
have  found  its  way  to  the  gate  house  within  a very 
few  days  ? This  freshet  occurred  in  the  early  part 
of  March.  If  coincident  with  a thaw,  then  the 
water  would  have  contained  the  animal  matters 
which  had  accumulated  on  the  surface  during  the 
freezing  weather. 

The  question  will  at  once  suggest  itself,  whether 
the  observed  facts  accord  with  this,  a priori  con- 
clusion. I think  it  clear  that  they  do. 

In  the  first  place,  the  results  of  examinations  of 
the  water  after  it  reached  Jersey  City,  both  Mr. 
Whipple’s  results  and  Dr.  McLaughlin’s,  show  the 
number  of  bacteria  to  be  very  variable.  Mr. 
Whipple,  the  principal  expert  witness  for  the  City, 
made  analyses  of  the  water  during  1904  and  1905. 

He  says,  that  the  number  of  bacteria  at  the  point 
of  discharge  in  the  small  acqueduct  on  Jersey  City 
Heights  varied  from  120  to  2,500  per  cubic  centi- 
meter, and  being  asked  by  the  Water  Company’s 
counsel  for  the  average,  he  said  it  was  642  ; that 
53  per  cent  of  the  samples  gave  positive  tests  for 
colon  bacillus  in  one  cubic  centimeter  and  that 
twenty  per  cent  of  the  samples  gave  positive  tests 
for  b.  coli  with  one-tenth  of  a cubic  centimeter.  In 
1905  the  results  were  better.  The  bacteria  varied 
from  210  to  2,400,  the  average  being  700.  Four 
and  a half  per  cent,  of  the  samples  gave  positive 
tests  for  b.  coli  both  when  one  cubic  centimeter 
and  when  one-tenth  of  a cubic  centimeter  were 
used. 


V 


56 


Dr.  McLaughlin’s  tables  show  like  differences. 
From  the  printed  tables,  it  appears  that  between 
May  24,  1904,  and  January  1,  1905,  (omitting  the 
months  of  July  and  August  when  no  examinations 
were  made)  the  number  of  bacteria  varied  from  50 
on  December  26  to  3,700  on  June  27th.  On  no  two 
successive  weeks  were  they  the  same.  In  1905, 
omitting  three  weeks  in  July  and  all  of  August,  the 
numbers  varied  from  30  in  July  to  1300  in  January. 
In  1907,  they  varied  from  10  in  June  to  400  in  De- 
cember. B.  coli  were  discovered  in  one  cubic  cen- 
timeter three  times  in  1904  ; twice  in  1905  and  four 
times  in  1906. 

The  last  test  by  Dr.  McLaughlin  in  1906  was  on 
December  23rd.  He  then  found  240  bacteria  pres- 
ent in  one  cubic  centimeter  and  b.  coli  present  in 
ten  cubic  centimeters.  Within  three  days  there- 
after (December  26th)  Prof.  Winslow  analyzed  the 
water.  He  found  200  bacteria  present  in  one  of 
the  small  reservoirs  (Res.  2)  on  Jersey  *City  Heights 
and  300  in  the  other  (Res.  3).  On  the  same  day  he 
found  b.  coli  present  in  both  in  a single  cubic  cent- 
imeter. In  March,  1907,  he  made  two  analyses  on 
two  successive  days.  On  March  19th,  he  found  in 
Reservoir  2,  in  the  morning,  1000  bacteria,  and  in 
the  afternoon  1200 ; in  the  other,  700  and  600. 
On  March  20th,  he  found  in  Reservoir  2,  700  in  the 
morning  and  800  in  the  afternoon  ; in  the  other, 
300  and  900.  On  March  19th,  in  Reservoir  2,  he 
30  found  b.  coli  present  in  one  cubic  centimeter  in 
two  samples  and  in  one-tenth  of  one  cubic  centi- 
meter in  another  sample.  In  Reservoir  3,  he  ob- 
tained a similar  result. 

These  analyses  show  that  when  the  water 
reaches  Jersey  City  it  contains  many  more  bac- 
teria on  some  days  than  it  does  on  others.  In 
other  words,  that  the  sedimentation  is  not  always 
complete.  The  full  significance  of  these  varia- 
tions will  be  more  apparent  when  we  consider 
them  in  connection  with  Dr.  Leal’s  statement  with 


57 


respect  to  the  bacteria  that  are  found  in  the  fil- 
tered water  after  it  passes  through  the  filter  plant 
at  Little  Falls.  “We  don't  care  so  much  about 
the  rate  of  efficiency,  but  we  want  less  than  100 
bacteria.  If  it  is  more  than  a hundred  we  add  a 
little  more  sulphate  of  aluminum."  Dr.  Leal's 
evidence  on  this  point  will  be  given  more  at  length 
in  another  connection. 

There  being  then  considerable  variations  in  the 
number  of  bacteria  found  in  the  water  tap  at  Jer-  ^ 
sey  City  and  in  the  small  reservoirs  there,  the 
question  that  next  suggests  itself  is  whether  there 
is  any  observed  connection  between  freshets  flow 
and  an  increase  in  the  number  of  b.  coli  and 
bacteria  there  and  freshet  flow.  This  increase 
does  in  fact  appear  to  be  marked  and  diagrams 
have  been  prepared  to  illustrate  it.  It  is  unfor- 
tunate that  our  data  are  somewhat  defective,  for 
two  reasons  : first,  because  Dr.  McLaughlin  made 
his  tests  from  water  drawn  from  the  tap  at  Christ 
Hospital  and  not  from  the  Jersey  City  reservoirs. 

% I have  already  said  that  as  a matter  of  law,  the 
Water  Company  was  bound  to  deliver  water  that 
was  pure  and  wholesome  at  these  reservoirs  or,  so 
far  as  it  did  not  pass  through  them,  at  the  point 
where  it  passed  from  the  pipes  of  the  Water  Com- 
pany into  the  service  pipes  of  Jersey  City.  The 
evidence  indicates  that  the  water  is  a little  better 
after  it  flows  through  the  City's  pipes.  This 
would  be  especially  true  of  the  water  flowing  out  30 
of  the  Jersey  City  reservoirs,  for  in  that  case  there 
would  be  some  little  additional  sedimentation. 
Consequently,  Dr.  McLaughlin's  results  are  a 
little  too  favorable  for  the  Water  Company. 

The  data  are,  secondly,  defective  because  not 
made  by  Dr.  McLaughlin  oftener  than  once  a week. 
Suppose  a heavy  rain  on  the  first  day  of  the 
month  and  no  analysis  until  the  seventh.  If  the 
water  does,  in  fact,  pass  from  the  mouth  of  the 
river  to  Jersey  City  in  two  or  three  days,  the 


58 


analysis  would  not  necessarily  show  an  increase  in 
bacteria.  The  storm  water  might  have  had  four 
days  in  which  to  settle  or  to  become  more  diluted 
with  the  waters  already  in  the  reservoir.  Hence, 
Dr.  McLaughlin’s  analyses  might  not,  and,  on  the 
assumption  I have  made,  often  would  not  indicate 
the  full  extent  of  the  pollution.  Keeping  these 
things  in  mind,  let  us  look  at  the  data  such  as  we 
find  them.  At  the  beginning  and  end  of  the  entire 
-j^  period  we  are  assisted  by  the  analyses  of  Mr. 
Whipple  and  Prof.  Winslow.  One  other  prelimin- 
ary observation  may  be  made.  When  a rainfall 
succeeds  a period  of  dry  weather  it  finds  the  air  it- 
self full  of  dust  and  the  ground  contaminated  to  a 
greater  or  less  extent  with  foecal  matter  and  gar- 
bage, the  amount  of  contamination  depending,  of 
course,  upon  the  length  of  the  drought  and  upon 
the  density  of  the  population.  I exclude  from  view 
altogether  the  case  of  sewers  constructed  to  carry 
off  sewage,  for  upon  this  watershed  there  are  none. 
^ The  first  rain,  if  at  all  heavy,  carries  a large  pro- 
portion of  these  impurities  into  the  stream.  If  it 
continues  to  rain,  the  river  water,  while  it  may  be 
colored  by  the  vegetation  of  peaty  bogs,  &c.,  grad- 
ually becomes  purer.  It  is  the  first  heavy  rain 
succeeding  a period  of  drought  that  is,  from  a bac- 
teriological standpoint,  most  to  be  feared.  If  the 
drought  has  been  sufficiently  prolonged  and  the 
reservoir  drawn  down  in  consequence,  then  the 
3Q  mouth  of  the  Rockaway  is  nearer  the  dam 
and  the  water  entering  it  has  a lesser  volume  of 
settled  water  with  which  to  intermingle. 
This  condition  of  affairs  was  remarkably  illus- 
trated by  what  occurred  in  September,  1904,  when 
the  reservoir  had  not  yet  filled.  Here  we  have  Mr. 
Whipple’s  figures  to  supplement  Dr.  McLaughlin’s 
On  September  15,  there  occurred  a very  heavy 
rainfall  of  five  inches.  On  the  day  previous  Mr. 
Whipple  found  in  the  Jersey  City  reservoir,  520 
bacteria  per  c.  c.,  and  on  that  day,  850.  On  Sep- 


59 


tember  16,  the  number  rose  to  1,700,  and  on  Sep- 
tember 17,  to  2060.  The  following  day,  (September 
18)  was  Sunday  and  no  test  was  made.  On  Monday, 
September  19,  the  bacteria  had  fallen  to  690  in  the 
small  reservoir.  But  Dr.  McLaughlin  also  made  a 
test  of  the  water  at  Christ  Hospital  on  that  day 
and  whereas  on  September  14  his  analysis  showed 
at  the  tap  only  275  (against  Mr.  Whipple’s  520  at 
the  reservoir),  on  September  19  his  test  showed 
750  and  the  presence  of  b.  coli  in  one  c.  c.  Not-  ^ 
withstanding,  therefore,  the  additional  purification, 
if  any,  that  the  water  had  undergone  in  the  Jersey 
City  pipes,  the  rise  in  the  number  of  bacteria  was 
very  marked.  It  is  difficult  to  draw  any  other  in- 
ference from  these  facts  than  that  the  influence  of 
the  storm  began  to  be  felt  in  the  Jersey  City  reser- 
voir the  day  after  it  began  and  that  two  days  after 
it  began  it  was  still  more  marked,  and  that  two 
days  after  that  it  was  clearly  perceptible  at  Christ 
Hospital.  Of  course,  we  would  have  had  still  more 
light  thrown  upon  the  matter  if  Dr.  McLaughlin 
had  tested  the  water  between  September  14  and 
September  21. 

The  next  heavy  rain  (3i  inches)  occurred  on 
October  21.  Mr.  Whipple’s  table  does  not  extend 
beyond  September  ; but  Dr.  McLaughlin’s  analysis, 
made  October  25,  shows  that  whereas  on  October 
19  there  were  only  110  bacteria  found,  on  October 
25,  four  days  after  the  rain,  the  number  had  in- 
creased to  800,  and  again  b.  coli  were  present  in  30 
one  c.  c.  On  November  1 it  fell  to  120. 

These  were  the  two  heaviest  rainfalls  of  the 
year.  In  the  following  year  there  was  a rainfall 
of  2i  inches  on  January  7th,  and  the  number  of 
bacteria  rose  to  the  unusual  number  of  1300.  The 
rainfall  may  have  been  accompanied  with  a thaw. 
There  was  another  rain  on  January  12th,  and  on 
January  17th  the  number  still  stood  at  1300.  How 
they  stood  in  the  interval  we  can  only  guess.  In 
February  and  March  the  numbers  varied.  The 


60 


precipitation  was  not  great  and  some  of  it  was 
probably  snow.  The  number  of  bacteria  was  con- 
siderably higher  in  March,  when  the  melting  snow 
caused  the  river  to  rise,  than  it  was  in  February. 
It  is  quite  in  accord  with  the  previous  results  that 
five  days  after  the  river  was  highest  in  the  reser- 
voir, the  number  of  bacteria  was  slightly  greater 
than  at  any  other  test  time  in  either  of 
those  two  months.  The  rains  for  the  rest  of 
IQ  the  year  were  not  very  heavy,  the  heaviest 
(21  inches)  being  on  September  4th  and  12th. 
On  September  7th  the  bacteria  were  130,  Sep- 
tember 12th,  120,  and  September  18th,  190. 

The  rise  on  September  18th  occurred  four  or 
five  days  after  the  water  in  the  reservoir  was  at 
its  highest,  but  the  difference  in  the  number  of 
bacteria  is  too  slight  to  afford  ground  for  any 
reasonable  inference. 

The  year  1906  was  characterized  by  very  moder- 
ate rainfalls — I should  say  unusually  so  for  on  only 
u two  occasions  throughout  the  year  did  they  amount 
to  21  inches.  There  was  less  variation  in  the 
number  of  bacteria  than  in  the  two  years  prior. 
It  is  in  this  year  that  Mr.  Cook,  on  behalf  of  de- 
fendants, has  furnished  us  a diagram  in  which  he 
compares  the  flow  of  water  in  the  reservoir  with 
the  number  of  bacteria  found  at  the  tap.  His  com- 
parison terminates  in  November. 

In  December,  1906,  we  have  for  the  first  time 
3Q  Professor  Winslow’s  figures.  In  consequence,  ap- 
parently, of  the  melting  of  the  snow  that  had  fallen 
during  the  month,  the  reservoir  was  at  its  highest, 
according  to  the  diagrams  both  of  Mr.  Cook  and 
Mr.  Whipple,  on  December  22nd.  On  December 
26th,  Professor  Winslow  found  in  Reservoir  2,200 
in  the  morning  and  150  in  the  afternoon.  On  De- 
cember 27th,  he  found  200  in  the  morning  and  150 
in  the  afternoon.  On  December  27th,  he  found 
200  in  the  morning  and  650  in  the  afternoon. 
Very  similar  results  were  found  in  the  other  reser- 


61 


voir  (300  and  200  on  December  26th  and  400  and 
600  on  December  27th).  On  December  23rd,  Dr. 
McLaughlin  found  at  the  tap  240  as  against  sev- 
enty-five on  December  17th,  and  on  December 
31st,  600.  There  was  a heavy  rain  on  December 
30th  or  31st  and  the  water  again  rose  very  rapidly 
in  the  reservoir,  reaching  its  highest  point  on  Jan- 
uary 1st  and  2nd,  1907.  On  January  6th  the  num- 
ber of  bacteria  at  the  tap  still  remained  high  (550). 

In  March,  1907,  as  shown  by  the  Whipple  diagram,  ^ 
the  water  rose  rapidly  on  March  13th  and  14th  and 
was  high  in  the  reservoir  up  to  March  30th.  On 
March  19th,  Professor  Winslow's  analyses  show 
the  presence  in  the  morning  of  1,000  bacteria  in 
reservoir  No.  2,  and  in  the  afternoon  of  1,200  as 
against  700  and  600  in  reservoir  No.  3.  On  March 
20th,  the  numbers  were  700  and  800  as  against  300 
and  900  in  reservoir  No.  3.  I have  already  said 
hat  these  analyses  showed,  in  three  of  the  testst, 
b.  coli  present  in  one-’tenth  of  a c.  c.  % 

There  appears  to  be  one  rather  marked  case  in 
which  higher  water  in  the  reservoir  was  not  fol- 
lowed by  an  increase  of  bacteria  at  the  tap.  In 
July,  1906,  there  was  a considerable  rain  and 
about  the  first  of  August  the  water  rose  in  the 
reservoir  in  consequence.  The  bacteria  appears 
to  have  decreased.  But  it  appears  from  the  dia- 
gram that  between  June  15  and  July  31  no  less 
than  twelve  inches  of  rain  fell.  This  large 
amount  fell  throughout  that  period  in  very  mod-  30 
erate  quantities,  but  on  a good  many  days.  The 
greatest  fall  (li  inches)  occurred  on  July  27th. 
These  numerous  rains  occurring  with  much  uni- 
formity throughout  this  entire  period  would 
have  been,  a priori,  likely  to  have  produced  the 
very  result  that  happened.  The  earlier  rains 
would  have  gradually  washed  off  the  impurities 
found  upon  the  surface  of  the  earth  and  the 
latter  rains  would  have  gone  into  the  stream 
comparatively  pure.  The  contention  of  com- 


62 


plainant  is  not  that  rain,  per  se,  even  in  con- 
siderable quantities,  is  favorable  to  an  increase 
of  bacteria,  but  that  heavy  storms  are— storms 
which  wash  the  earth  and  carry  the  impurities 
that  have  accumulated  upon  it  in  periods  of 
drought,  in  a concentrated  form,  into  the  river. 
This  apparent  exception,  therefore,  would  seem,  if 
anything,  to  prove  the  rule. 

Mr.  Whipple  also  testifies  to  certain  color  tests 
IQ  made  in  1904  while  the  reservoir  was  unfinished. 
As  far  as  they  go,  they  lead  to  the  same  conclusion 
that  the  bacteria  counts  do,  but  I do  not  care  to 
rely  upon  them,  for  other  causes  might  have  con- 
duced to  the  results  obtained. 

I am,  on  the  whole,  obliged  to  conclude  that  all 
the  evidence  favors  the  theory  that  water,  under 
certain  combinations  of  circumstances  occurring 
perhaps  on  an  average  two  or  three  times  a year, 
will  pass  from  the  mouth  of  the  river  to  the  Jersey 
City  reservoirs  in  two  or  three  days.  Every  fact 
is  favorable  to  this  view  and  no  fact,  so  far  as  I 
can  discover,  is  opposed  to  it.  So  strong  is  the 
evidence  that  no  expert  has  been  found  willing  to 
assert  the  contrary.  Mr.  Hering,  a gentleman  of 
great  experience,  would  not,  as  I have  already 
shown,  commit  himself  on  the  subject  and,  what 
is  still  more  noteworthy,  Mr.  Cook,  the  engineer 
in  charge  of  the  works,  was  not  asked  to  testify 
about  it.  Under  these  circumstances  I accept  the 
3Q  opinion  of  Mr.  Kuichling,  an  expert  of  wide  ex- 
perience, based  as  it  is  upon  grounds  that  seem  to 
be  unanswerable,  and  fortified  as  it  is  by  the 
other  proven  facts. 

Now,  this  appears  to  be  the  difficulty  with  the 
defendants'  case  on  this  branch  of  it.  The  reser- 
voir does  its  purifying  work  imperfectly  at  the 
time  when  that  work  is  most  needed. 

To  meet  the  force  of  this  objection,  the  Water 
Company  resorts  to  proof  of  averages  and  to  opin- 


63 


ion  evidence.  It  uses  averages  in  two  ways. 
First,  it  compares  what  it  calls  the  average  effic- 
iency of  the  reservoir  as  a sedimentation  basin 
with  the  standard  prescribed  by  the  expert  wit- 
nesses of  the  City.  Second,  it  compares  its 
average  efficiency  with  that  of  filter  plants.  I may 
say  that  in  view  of  the  evidence,  I regard  aver- 
ages, thus  used,  as  altogether  misleading. 

The  Water  Company’s  expert,  Dr.  McLaughlin, 
says,  “ Water  which  does  not  contain  b.  coli  in  ^ 
one  cubic  centimeter,  judging  from  my  work  on 
this  subject,  more  than  fifty  per  cent,  of  the 
times  of  examination  of  this  particular  water  of  the 
Rockaway  would  indicate  good  wholesome  water, 
in  my  opinion.”  He  says,  further,  speaking  of 
the  result  of  his  tables,  in  1904,  b.  coli  in  one 
centimeter  were  present  seven  per  cent,  of  the 
time  ; in  1905,  seven  per  cent,  of  the  time  ; in  1906, 
eight  per  cent,  of  the  time.  “I  deduce  from 
that,  that  the  water  is  good  water.” 

This  method  of  deducing  his  conclusion  is  at- 
tacked by  the  city’s  experts.  They  assert  that  he 
cannot  examine  the  water  once  a week  for  a year 
and  then  judge  of  the  excellence  of  the  supply  by 
taking  an  average  of  the  tests  for  that  year  ; that 
the  only  way  in  which  he  can  use  averages  is  by 
applying  them  to  the  results  of  several  examina- 
tions made  of  samples  taken  at  the  same  time  from 
the  same  place.  To  illustrate : If  fifty  samples 
were  taken  from  the  same  place  on  the  same  day  gQ 
and  it  were  found  that  b.  coli  were  not  present  in 
one  cubic  centimeter  in  more  than  fifty  per  cent, 
of  the  samples,  then  the  water  would  be  considered 
good  ; but  if  one  sample  were  taken  on  one  day  in 
eaffi  week  of  the  year  and  it  were  found  chat  on 
forty-five  days  b.  coli  were  not  present  and  on 
seven  days  they  were,  all  that  that  would  indicate 
would  be  that  on  forty-five  days  the  water  was  good 
and  on  seven  days  it  was  either  bad  or,  at  least, 
open  to  suspicion.  We  certainly  would  not  be  justi- 


64 


fied  in  concluding  that  it  was  unobjectionable  dur- 
’ ing  seven  weeks,  (if  a day  is  to  stand  for  a week) 
only  because  it  was  good  for  forty- five  weeks  ; if,  in 
point  of  fact,  it  were  found  that  for  those  seven 
weeks  it  was  bad. 

Prof.  Winslow’s  attention  being  directed,  on  cross 
examination,  to  a statement  made  by  him  in  a 
discussion  published  in  the  Journal  of  the  New 
England  Water  Works  Association  to  the  effect 
-j  q that  the  commonly  accepted  standard  is  that  water 
good  to  drink  should  not  give  a positive  test  for 
the  coli  bacillus  in  one  cubic  centimeter,  certainly 
not  over  fifty  per  cent,  of  the  time,  said  : “ What 

I meant  by  that,  as  I explained  a few  minutes  ago, 
is  that  if  samples  (be)  taken  from  the  same  source 
undet  the  same  conditions,  not  more  than  50  per 
cent,  should  show  b.  coli.  When  they  are  taken  at 
different  times  with  varying  conditions  that  con- 
clusion does  not  apply.”  This  statement,  as  ap- 
plied to  the  reservoir,  seems  to  me  so  obvious  that 
nothing  but  its  bare  annunciation  would  seems 
necessary  ; and  yet  the  defendant’s  entire  case  is 
built  up  on  the  opposite  theory.  In  fact,  so  strong 
and  positive  has  been  the  testimony  of  defendant’s 
experts  on  this  subject  that  I should  feel  hesita- 
tion in  presuming  to  differ  from  them  were  it  not 
that  at  least  an  equal  weight  of  names  is  on  the 
other  side.  I think  that  perhaps  the  witnesses  for 
the  Company  were  unconsciously  construing  the 
contract  in  a sense  advantageous  to  that  side. 
They  may  have  assumed  that  when  the  contract 
called  for  pure  and  wholesome  water  it  really 
meant  that  the  general  average  of  the  water 
throughout  the  entire  year  should  not  be  below 
the  standard.  In  other  words,  that  if  the  fifty- 
two  samples  tested  taken  on  fifty -two  different 
days  were  all  blended  together  and  the  blend  were 
up  to  the  standard,  the  contract  would  be  satis- 
fied. If  the  inhabitants  of  Jersey  City  could  drink 


65 


this  blend  every  day  the  position  would  be  more  • 
plausible. 

The  Company  endeavored  to  demonstrate  the 
efficiency  of  the  reservoir  as  a purifier  in  another 
way.  Their  witnesses  compared  the  number  of 
bacteria  in  the  water  of  the  river,  where  it  flowed 
into  the  reservoir,  with  the  number  of  bacteria  in 
the  water  both  at  the  gate  house  and  after  it 
reached  Jersey  City.  Dr.  Leal,  on  this  basis,  for 
the  whole  period  between  June  13,  1904,  and  De-  ^ 
cember  10,  1906,  computed  the  average  efficiency 
at  the  dam  to  be  97i  per  cent,  and  at  the  tap  in  Jer- 
sey City  to  be  99  2-10  per  cent.  He  compared  this 
average  efficiency  with  the  average  efficiency  of 
the  Little  Falls  filter,  which  he  himself  superin- 
tended. This,  he  says,  was  from  September  1, 

1903,  to  September  1,  1904,  97.8  per  cent ; Septem- 
ber 1,  1904,  to  September  1,  1905,  96.4  per  cent ; 
September  1,  1905,  to  September  1,  1906,  96.1  per 
cent.  Comparing  the  two, it  would  seem  that  in  1905 
and  1906,  so  far  as  bacteria  were  concerned,  the  ^ 
reservoir  showed  a higher  percentage  of  efficiency 
than  the  filter.  But  the  question  is  not  whether, 
on  an  average , the  water  was  good,  or  whether,  on 
an  average,  it  compared  favorably  with  the  average 
of  some  other  water,  but  whether  there  were 
times  when  it  was  polluted.  Such  a comparison 
shows  nothing  on  this  head.  Dr.  Leal  is  obliged 
to  admit,  on  cross  examination,  that  according  to 
Dr.  McLaughlin’s  tables,  in  June,  1904,  the  effici- 
ency  of  the  reservoir  was  only  73  per  cent.  He 
does  not  pretend  that  this  was  a good  showing  or 
that  such  variations  are  to  be  found  in  the  filter 
plant.  And  the  reason  is  obvious,  if  we  consider  how 
the  work  of  filtering  is  accomplished.  This  is  Dr. 
Leal’s  description  of  the  process  : “ The  system 

of  purification  at  Little  Falls  is  this  : As  the  water 
enters  the  filter  plant,  sulphate  of  aluminum,  from 
half  a grain  or  a quarter  of  a grain  up  to  a grain 


66 


and  a half  or  two  grains  to  a gallon,  is  added  to 
the  water.  The  sulphate  of  aluminum  on  being 
added  to  the  water  splits  up  into  hydrate  of 
aluminum  which  is  a flocky  precipitating  mass.  It 
is  the  same  principle  as  the  settling  of  coffee 
grounds  with  white  of  an  egg.  This  gelatinous 
matter  is  spread  all  through  the  mass  of  water  and 
it  sinks  down  to  the  bottom,  carrying  with  it  and 
tangling  in  its  meshes,  carrying  into  it  all  sus- 
pended matter,  including  bacteria.  This  process 
takes  place  in  a large  sedimentation  basin  which 
holds  1,800,000  gallons  of  water  and  the  water 
stays  in  that  about  two  hours.  * * * The 

free  sulphuric  acid  which  is  left  when  the  hydrate 
(of  aluminum)  is  split  off,  unites  with  the  lime  base, 
carbonates  of  lime  and  soda  (in  the  water  in  its 
natural  state).  * * * The  water  flows 

back  and  forth  in  this  sedimentation  basin  and  fin- 
ally flows  on  to  the  surface  of  the  (sand)  filters. 
What  little  is  left  of  the  coagulating  mass  and 
what  few  bacteria  are  left  are  almost  entirely 
removed  on  the  surface  of  the  filter.” 

From  this  description  it  is  evident  that  the 
amount  of  alumina  introduced  depends  upon  the 
condition  of  the  water.  It  is  so  regulated,  says 
Dr.  Leal,  that  “ the  order  to  the  man  in  charge  is 
to  keep  within  100  bacteria.  We  don't  care  so 
much  about  the  rate  of  efficiency , but  we  want  less 
than  100  bacteria.  * * If  it  is  more  than  a hun- 
gQ  dred  we  add  a little  more  sulphate  of  aluminum.” 

This,  no  doubt,  is  a perfectly  accurate  statement 
of  the  matter.  It  agrees  with  what  is  testified  to 
by  all  the  experts  ; but  so  far  from  bearing  out  Dr. 
Leal’s  theory  of  the  reservoir  as  a purification 
basin,  it  shows  very  clearly  that  the  important 
thing  is  not  so  much  high  percentage  of  effi- 
ciency as  it  is  absolute  results.  If  500  bacteria 
are  left  in  the  water,  no  matter  how  high  the  per- 
centage of  efficiency,  the  result  obtained  is  unsat- 


67 


isfactory.  “ We  want  less  than  100  bacteria.  If 
it  is  more  than  one  hundred  we  add  a little  more 
sulphate.”  Many  striking  illustrations  could  be 
drawn  from  Dr.  McLaughlin’s  tables.  Thus,  in 
March,  1905,  the  number  of  bacteria  per  c.  c.  is,  in 
the  river,  9100.  The  number  at  the  gate  house 
is  600.  The  percentage  of  efficiency,  cal- 
culated according  to  the  method  employed 
by  Dr.  McLaughlin,  (p.  3221  of  printed  case) 
is  93%.  I use  the  gate  house  figures  because  the  ^ 
reservoir  as  a purifier  is  compared  with  the  filter 
plant  as  a purifier.  In  the  case  of  this  latter,  the 
figures  relate  to  the  water  as  it  passes  out  of  the 
filter,  not  to  the  water  as  it  is  delivered  to  Bay- 
onne or  other  suburban  towns.  In  December  of 
the  same  year  the  number  of  bacteria  in  the  river 
was  2700  ; the  number  at  the  gate  house  was 
1000  ; the  percentage  of  efficiency,  therefore,  63%. 

In  January,  1906,  the  number  of  bacteria  in  the 
river  1500  ; at  the  gate  house  900  ; the  percentage 
of  efficiency,  40%.  If  this  mode  of  computing  the 
efficiency  could  be  relied  upon  it  would  condemn 
the  reservoir,  regarded  as  a purification  agency, 
as  inefficient  and  almost  useless.  The  fact  is, 
however,  that  it  is  entitled  to  no  such  condemna- 
tion. The  method  adopted  appears  to  be  abso- 
lutely worthless  for  the  following  reason  : What 
Dr.  McLaughlin  did  was  to  take  samples  of  water 
out  of  the  river  and  out  of  the  reservoir  at  the 
gate  house,  and  at  the  tap  in  Jersey  City  on  the 
same  day,  and  each  sample  was  taken  at  about  the 
same  or  nearly  the  same  time  on  that  day.  Now 
according  to  all  the  evidence  it  must,  except  under 
such  extraordinary  conditions  as  the  Water  Com- 
pany would  not  be  obliged  to  provide  against — for 
instance,  an  unprecedented  drought  lasting  so  long 
that  all  the  water  in  the  reservoir  was  exhausted, 
followed  by  an  unprecedented  freshet — it  must,  I 
say,  take  a day  or,  more  likely,  two  or  three  days, 
for  the  water  to  pass  from  the  mouth  of  the  river 


68 


to  the  gate  house  and  it  takes  just  seventeen  hours 
for  the  water  to  travel  from  the  gate  house  to 
Jersey  City.  To  take,  therefore,  figures  showing 
the  bacteria  in  the  water  at  these  three  different 
places,  at  the  same  time,  is  not  the  slightest  evi- 
dence of  reservoir  efficiency.  To  find  out  the 
efficiency,  we  must  know  how  the  water  flowing 
into  the  reservoir  has  been  affected  by  its  passage 
through  the  reservoir.  This,  of  course,  we  cannot 
know  absolutely  for  the  reasons  heretofore  ad- 
verted to  and  besides  the  water  of  the  river  would, 
under  any  circumstances,  be  diluted  with  the 
water  already  in  the  reservoir.  But  if  we  had  had 
a daily  test  at  the  gate  house  and  at  Jersey  City  it 
could,  1 think,  have  been  approximated. 

Another  illustration  is  a reduction  ad  absurdum 
of  the  method  employed.  On  January  12,  1905, 
the  bacteria  in  the  river  per  c.  c.  amounted  to 
2,700 ; the  bacteria  at  the  gate  house,  5,400.  If 
we  could  draw  any  inference  it  would  be  that  the 
reservoir  had  increased  the  pollution.  When  Dr. 
McLaughlin’s  attention  was  called  to  this  he  sug- 
gested that  in  the  long  run  the  figures  given  would 
correct  themselves.  I doubt  if  we  have  enough 
instances,  even  for  this  purpose  ; but  the  funda- 
mental difficulty  would  remain ; we  would  still 
have  average  efficiency  and  not  the  efficiency  of 
the  reservoir  in  times  of  freshet  or  drought,  fol- 
lowed by  heavy  downpour.  It  is  very  easy  to  see 
3Q  that  by  taking  averages,  very  good  water— water 
above  the  standard— delivered  at  one  time  may 
be  used  to  cover  up  the  faults  of  polluted  water 
delivered  at  another  time. 

There  is  another  and,  as  it  seems  to  me,  import- 
ant observation  to  be  made  with  respect  to  the 
table  showing  the  efficiency  of  the  filter  plant. 
This  table  shows  monthly  averages  only,  although 
daily  tests  were  made  at  the  filter  works.  And 
this  table  deals  only  with  bacteria  and  not  with  b. 


69 


coli.  It  is  hardly  possible  that  the  East  Jersey 
Water  Company  made  no  analyses  for  b.  coli  and 
yet  these  are  not  shown  with  a view  of  comparing 
them  with  the  analyses  for  b.  coli  made  by  Dr. 
McLaughlin.  However,  taking  the  table  as  we 
find  it,  it  appears  that  the  greatest  number  of  bac- 
teria present  in  the  filtered  water  in  any  month  is 
300,  as  the  average  for  February;  1906.  On  only 
two  other  occasions  did  the  bacteria  rise  above 
200.  In  far  the  larger  number  of  cases  it  was 
much  below  100.  It  is  not  likely,  in  view  of  Dr.  ^ 
Leal's  statement  about  adding  aluminum,  that 
these  averages  were  much  exceeded  on  the  several 
days  of  those  several  months.  The  showing  thus 
made  is  a far  better  one  than  is  afforded  by  Dr. 
McLaughlin's  monthly  showings  of  the  water  at 
the  gate  house.  On  January  12  of  the  year  1905, 
there  were  5,400  bacteria  per  c.  c.  On  three  days 
of  three  other  months  in  the  same  year,  1,000,  or 
more.  In  the  three  years  covered  by  his  monthly 
report  once  they  numbered  900,  once  750,  six  times  20 
they  ranged  between  500  and  700  and  only  four 
times  did  they  fall  below  100. 

So  much  for  Dr.  McLaughlin's  results  at  the 
gate  house.  Let  us  look  at  his  results  at  the  Hos- 
pital. It  must  be  remembered  that,  owing  to  a 
lack  of  other  data,  we  are  obliged  to  compare  the 
bacteria  found  at  the  hospital  with  those  found  at 
the  exit  of  the  filter.  To  make  a fair  comparison 
we  should  compare  the  water  at  the  tap  in  Jersey 
City  with  the  filtered  water  at  the  tap — say  in 
Bayonne.  If  the  water  is  additionally  purified  by 
passing  through  pipes,  as  it  appears  to  be,  then  the 
filtered  water  at  Bayonne  would  make  a better 
shywing  than  the  same  water  at  Little  Falls.  Here 
too  Dr.  McLaughlin  gives  us  an  average  and  this 
average,  from  June,  1904,  to  December,  1906,  (in 
elusive)  is  175  bacteria.  This  is  more  than  Dr. 

Leal  thinks  ought  to  be  allowed  to  pass  through 
the  filter.  But  when  we  come  to  analyze  Dr.  Me- 


70 


Laughlin’s  figures  for  individual  days  we  find  this 
that  in  1894  out  of  forty-five  tests,  the  bacterial 
count  was,  on  twenty-two  occasions,  300  or  over  ; 
on  ten  occasions,  600,  or  over  ; once,  1,000  ; once 
1,700  and  once  3,700.  In  this  year,  however,  as  I 
have  already  said,  the  reservoir  was  still 
under  construction.  In  1905,  there  were 

forty-one  tests.  The  result  was  that  on  twelve 
occasions  the  bacteria  amounted  to,  or  ex- 
jq  ceeded,  300 ; on  one  occasion,  they  amounted  to 
750,  and  on  two  occasions  to  1300.  In  1906,  in 
fifty-one  tests  there  were  only  fifteen  occasions 
when  the  count  exceeded  100 ; four  when  it  ex- 
ceeded 200  ; once  it  was  325  ; once  375,  and  once 
400,  to  which  we  ought  to  add  Prof.  Winslow’s 
150,  200  and  300  on  December  26th  ; in  the  Jersey 
City  reservoir ; 200,  400,  600  and  650  on  December 
27th;  600,  700,  1,000,  1,200  on  March  19, 1907  ; 500, 
700,  800,  900  on  March  20,  1907.  From  such  a 
small  number  of  data  in  1907  we  would  scarcely 
be  warranted  in  drawing  any  conclusion,  except 
this  : either  that  conditions  were  unusually  favor- 
able in  1906,  or  that  the  water  at  the  tap  was  better 
than  the  water  as  it  was  delivered  into  the  small 
reservoirs,  for  Prof.  Winslow’s  results  show  that 
for  two  days  in  March,  1907,  the  water  contained 
considerably  more  bacteria  than  it  had  contained 
at  any  time  in  1906. 

The  general  result  is  that  taking  the  best  year 
3q  in  seventeen  instances  (counting  Prof.  Winslow’s 
eight  analyses  as  only  two  because  made  on  only 
two  days)  the  number  of  bacteria  exceeded  at  the 
tap  what  Dr.  Leal  thought  was  not  a satisfactory 
number  even  at  the  exist  of  the  filter. 

The  bacteria  do  not  necessarily  come  from  the 
intestine  of  either  man  or  beast.  The  b.  coli  do. 

I do  not  find  any  table  that  indicates  the  number 
of  b.  coli  present  after  the  water  has  been  filtered. 
We  will,  therefore,  have  to  judge  of  these  by  a 
different  rule.  I do  not  understand  that  the 


71 


Water  Company’s  experts  quarrel  with  the  rule 
stated  by  Mr.  Whipple.  That  rule  is  this:— “ If 
the  water  regularly  shows  the  presence  of  b.  coli 
in  ten  cubic  centimeters  and  not  in  one  cubic  cen- 
timeter it  may  be  safe  for  use.  If  it  contains  b. 
coli  in’one  cubic  centimeter  and. not  in  one-tenth 
cubic  centimeter  it  may  be  considered  as  of  doubt- 
ful quality.  If  it  contains  b.  coli  in  one-tenth  but 
not  in  one-hundredths  cubic  centimeter  it  may  be 
considered  to  be  too  much  polluted  to  be  safely  ^ 
used.  If  it  contains  b.  coli  in  one-hundredths 
cubic  centimeter  the  water  is  quite  certain  to  be 
seriously  polluted.” 

Now,  testing  the  water  by  this  rule  we  have  the 
following  results  derived  from  Dr.  McLaughlin’s 
tables  : In  1904,  on  three  occasions  b.  coli  were 
found  at  the  Christ  Hospital  tap  both  in  one  c.  c. 
and  in  10  c.  c.,  and  on  eight  occasions  in  10  c.  c. 

In  1905,  b.  coli  were  found  twice,  both  in  one  c. 
c.  and  10  c.  c.  and  twenty-four  times  in  10  c.  c. 

In  1906,  b.  coli  were  found  four  times  both  in  1 c. 
c.  and  in  10  c.  c.  and  thirty-two  times  in  10  c.  c. 

This  result  is  rather  noteworthy.  It  shows  that 
while  the  number  of  bacteria  was  smaller  in  1906 
than  it  was  in  1904,  the  number  of  b.  coli  was 
greater,  on  the  whole,  in  1905  than  it  was  in  1904, 
and  greater  in  1906  than  it  was  in  1905.  B.  coli, 
as  I understand  the  evidence,  are  more  indicative 
of  undesirable  pollution  than  are  bacteria. 

The  conclusion  from  this  evidence  would  be,  30 
that  applying  the  Whipple  rule  in  1904,  the  water 
was  of  doubtful  quality  seven  per  cent,  of  the 
time  ; in  1905,  five  per  cent,  of  the  time,  and  1906 
eight  per  cent.  This,  in  days,  would  be,  in  1904, 
twenty-five  and  one-half  days,  in  1905,  eighteen 
days,  and  in  1906,  twenty-nine  days,  or,  if  we  in- 
clude Prof.  Winslow’s  analysis,  thirty-one  days. 

I now  come  to  the  opinion  evidence,  and,  first, 
the  evidence  of  Dr.  Johnson.  He  and  Dr.  Mc- 
Laughlin made,  independently,  analyses  of  the 


72 


water  at  the  tap  in  Christ  Hospital  on  March  28th 
and  29th,  1907.  His  tests  showed  the  presence  in 
one  cubic  centimeter  of  bacteria  whose  numbers 
in  the  different  tests  varied  from  240  and  300  in 
one  c.  c.  to  220  in  one-half  of  one  c.  c. 

It  is  rather  singular  that  he  is  not  called  upon 
to  say  whether  he  regards  this  number  as  satis- 
factory, but  he  is  referred  to  Mr.  Whipple’s  rule 
and  says  that  Dr.  McLaughlin’s  results  show  water 
within  Mr.  Whipple’s  standard.  He,  too,  evidently 
10  has  in  mind  averages , for  he  could  not  assert  that 
according  to  Mr.  Whipple’s  rule,  as  Mr.  Whipple 
himself  interprets  it,  water  is  good  which  contains 
b.  coli  in  one  c.  c. 

Then  he  is  asked  to  compare  the  average  effi- 
ciency of  the  Boonton  reservoir  with  the  average 
efficiency  of  the  filter  plants  at  Little  Falls,  Wash- 
ington, Albany,  &c.,  and  he  says  it  compares  very 
favorably  with  the  results  obtained  in  those  works. 
Here,  again,  we  have  the  same  fallacy.  What  we 
20  want  to  know  is,  not  about  the  averages,  but 
whether  the  reservoir  can  be  depended  upon,  in  all 
seasons  of  the  year,  to  provide  pure  and  whole- 
some water.  If  the  filter  works  uniformly  furnish 
such  water  and  the  reservoir  does  not,  then  even 
though  the  reservoir  may  for  the  greater  part  of 
the  time  give  better  results  than  the  filter,  if  at 
some  times  it  gives  unsatisfactory  results,  then  it 
is  not  as  efficient  or  as  safe  a purifying  agency  as 
the  filter  is.  Dr.  Johnson  gives  his  evidence 
lucidly  and  carefully  and  I fail  to  find  in  any  state- 
ment that  he  makes  anything  at  variance  with 
what  is  said  by  defendants’  experts.  Thus,  he  is 
asked  to  express  his  opinion  whether  it  would  ever 
be  possible  for  an  epidemic  of  typhoid  fever,  due 
to  the  water  supply,  to  break  out  in  Jersey  City  ; 
and  this  is  his  answer : “ If  there  is  a complete 

or  even  approximately  complete  displacement  of 
the  water  in  the  Boonton  reservoir  and  no  direct 
current  from  the  Rockaway  river  to  the  outlet  of  the 


73 


Boonton  dam,  I think  it  is  extremely  improbable 
that  an  epidemic  would  ever  occur  in  Jersey 
City  due  to  the  water  supply  from  the  Boonton 
roservoir.”  Every  witness  in  the  cause  admits  that 
if  the  water  in  the  reservoir  stays  there  long 
enough,  it  will  become  purified.  Dr.  Johnson's  evi- 
dence presupposes  that  Jt  does.  He  expressly  says 
that  the  river  water  is  unfit  to  drink.  He  gives  some 
figures  in  reference  to  the  three  reservoirs  which 
supply  Washington,  D.  C.  The  water  passes  sue-  ^ 
cessively  through  all  of  them  and  is  then  filtered. 

He  says  that  the  period  of  storage  in  the  first  two 
is  from  one  to  two  days  each  and  in  the  third  from 
two  to  four  days.  In  the  first,  the  percentage  of 
removal  is  seventy  per  cent.  In  the  first  and  sec- 
ond together,  eighty-six  per  cent.  In  all  three,  in 
a period  of  from  four  to  eight  days,  ninety-three 
per  cent.  Then  he  is  asked  the  question,  are  any  of 
these  places  (Washington,  Lawrence,  &c.)  compar- 
able with  that  of  Boonton  for  efficiency  of  storage 
and  his  answer  is,  no,  sir.  Here,  too,  he  assumes,  for  ^0 
he  necessarily  must  assume,  that  it  takes  longer 
than  eight  days  for  the  water  to  pass  from  the 
river  to  the  dam,  for  if  it  did  not,  then,  on  his  own 
figures,  assuming  that  the  river  water  was  not 
much  diluted,  the  efficiency  would  be,  or  might  be, 
only  ninety-three  per  cent  and  no  one  pretends 
that  this  would  indicate  satisfactory  work.  Final- 
ly, counsel  asks  this  question  : “Now,  Mr.  John- 
son, what  have  you  to  say  as  to  the  result  showing 
an  average  at  the  tap  of  bacteria  to  be  only  239  per 
c.  c.,  what  have  you  to  say  as  to  the  quality  of 
that  ? ” He  replies,  “ I consider  it  a very  good  re- 
sult. ” Here,  again  we  have  averages.  If  his  at- 
tention had  been  directed  to  the  results  obtained 
by  Professor  Winslow  in  March,  1907,  in  the  Jer- 
sey City  reservoirs,  viz.,  1,000  and  1,200  bacteria 
and  b.  coli  present  in  one  cubic  centimeter  in  one 
sample,  and  one-tenth  of  one  cubic  centimeter  in 
another,  the  whole  trend  of  his  evidence  shows 


74 


that  he  would  have  expressed,  as  to  that  water,  a' 
different  opinion. 

Then  we  have  the  testimony  of  Mr.  Hering. 
He  says  that  the  results  of  Dr.  McLaughlin's  re- 
ports show  that  the  quality  of  the  water  as  now 
(that  is,  at  the  time  he  testified)  delivered  to  Jer- 
sey City  is  of  good  quality — safe  and  potable. 
This  is  a stronger  statement  than  Dr.  Johnson's. 
Unfortunately,  he  does  not  state  the  reasons  upon 
which  this  opinion  is  based.  As  he  does  not  quar- 
rel with  the  figures  given  by  the  other  witnesses 
as  to  the  length  of  time  during  which  sedimenta- 
tion must  continue  in  order  to  eliminate  pollution, 
I suppose  that  his  opinion  is  founded  upon  the  as- 
sumption that  the  water  has  time  to  purify  itself. 
He  subsequently  stated,  as  I have  already  said, 
that  he  would  not  undertake  to  say  how  many 
days  it  would  take  the  water,  under  freshet  condi- 
tions, to  flow  across  the  reservoir. 

Mr.  Edloe  Harrison  also  testifies  on  this  subject. 
^ His  testimony  is  based  upon  the  results  of  Dr.  Mc- 
Laughlin's analyses.  He  says,  “ The  fact  is  that 
this  reservoir  is  reducing  the  bacteria  to  as  great 
an  extent  as  the  most  improved  modern  filters.  He 
must,  of  course,  be  referring  to  averages.  He 
thinks  that  a reservoir  which  works  automatically 
is  superior  to  a filter  plant  because  filtration  de- 
pends upon  human  agency,  and  if  the  work  be  not 
intelligently  performed,  the  water  will  run 
gq  through,  without  being  adequately  purified.  He 
says  that  in  his  reading  he  has  not  met  with  an 
instance  in  which  infection  has  taken  place  from  a 
large  storage  reservoir  ; and  that  the  published 
reports  as  to  other  cities  show  the  water  coming 
from  the  Boonton  reservoir  to  be  better  than  that 
of  other  cities.  Undoubtedly,  it  is  much  better 
than  the  water  of  a large  number  of  the  cities  of 
this  country.  The  argument  would  be  stronger  if 
it  were  not  for  the  fact  that  it  appears  very 
clearly  that  the  water  of  these  cities  is  polluted* 


75 


and  that  where  cities  having  a polluted  water  sup- 
ply have  adopted  proper  precautions  the  death  rate 
has  been  greatly  reduced.  In  the  case  in  hand 
Jersey  City  bargained,  not  for  water  less  polluted 
than  that  of  some  other  cities,  but  for  pure  and 
wholesome  water.  There  is  considerable  force  in 
the  suggestion  that  a system  which  works  auto- 
matically is  better  than  one  which  depends  upon 
human  agency,  but  this,  of  course,  presupposes 
that  the  automatic  system  is  doing  effective  work.  ^ 
If  it  is  not,  then  it  must  be  supplemented  by  human 
agencies.  The  very  point  is  whether  the  auto- 
matic system  here  under  examination  is  producing 
uniformly  good  results,  or  whether,  to  ensure 
them,  sedimentation  must  not  be  supplemented  by 
something  else.  But  to  this  phase  of  the  contro- 
versy Mr.  Harrison's  attention  was  not  particu- 
larly directed.  Prof.  Sedgwick  says  that  the 
serious  objection  to  a reservoir  such  as  the  Boon- 
ton  reservoir,  as  compared  with  a filter,  is  that  if 
it  works  badly,  as  he  believes  this  one  does  from 
time  to  time,  there  is  nothing  that  can  be  done 
easily,  or  conveniently,  or  quickly,  to  remedy  the 
trouble,  whereas  in  a filter  rightly  supervised 
changes  can  be  made  to  correct  any  defects  which 
may  be  discovered.  He  considers  a reservoir  like 
the  Boonton  far  inferior  as  a sanitary  safeguard 
or  purifying  mechanism,  to  a filter. 

Referring  to  Mr.  Harrison’s  evidence,  Mr.  Kuch- 
ling  says,  “ I do  not  believe  that  Mr.  Harrison’s  30 
statement  is  correct  for  the  reason  that  he  does 
not  consider  the  posibility  of  a freshet  or  a high 
wind  or  the  action  of  the  reservoir  when  covered 
with  ice,  in  times  of  freshet.  He  also  ignores  en- 
tirely the  demonstration  of  the  existence  of  per- 
sistent and  marked  currents  in  the  reservoir  as 
shown  by  the  float  experiments,  and  also  by  the 
number  of  bacteria  in  the  river  and  at  the  upper 
gate  house,  and  at  the  tap  in  Jersey  City.  He  also 
stated  that  he  knew  of  no  case  of  typhoid  fever 


76 


produced  by  the  use  of  water  from  a large  storage 
reservoir,  whereas  we  have  the  fact  that  there  was 
at  Scranton,  Pa.,  a very  serious  epidemic  of  ty- 
phoid fever  last  December  and  January  from  the 
use  of  infected  water  from  a very  large  storage 
reservoir.” 

Dr.  Herold,  the  president  of  the  Newark  Board 
of  Health,  also  testifies  on  behalf  of  the  Water 
Company.  He  is  asked  a hypothetical  question, 
^ based  upon  the  capacity  of  the  river  and  of  the 
reservoir,  and  expresses  the  opinion  that  he  re- 
gards the  works  as  affording  a safe  method  of 
purification.  He  says  that  Dr.  McLaughlin's  re- 
port shows  the  water  to  be  of  good  quality  and  the 
water  supply  safe.  But  on  cross  examination  it  is 
evident  that  he  thinks  there  must  be  time  for 
sedimentation.  He  says  it  would  be  better  if  the 
water  were  given  one  hundred  days  to  settle,  but 
that  the  minimum  limit  would  be  fifteen  or 
twenty  days— time  enough,  as  he  says,  for  the  de- 
^ struction  of  pathogenic  germs.  These,  he  thinks, 
would  die  in  that  period.  He  is  not  a bacteriolo- 
gist, and  if  he  thinks  that  pathogenic  germs  will 
perish  in  twenty  days  he  disagrees  with  the  bac- 
teriologists on  both  sides.  If  pathogenic  germs 
were  not  present  he  thinks  perhaps  the  water 
could  be  used  in  twenty-four  hours.  His  testimony 
rests  upon  the  assumption  that  the  water  does  not 
pass  from  the  river  to  the  gate  house  in  less  than 
2Q  fifteen  or  twenty  days. 

Dr.  Leal  expresses  the  opinion  that  the  water 
delivered  to  Jersey  City  is  pure  and  wholesome  be- 
cause, in  addition  to  the  argument  from  averages, 
it  appears  that  the  death  rate  shows  that  during 
the  past  three  years  there  has  been  no  infection,  and 
so  does  Dr.  McLaughlin.  The  argument  from  the 
death  rate  seems  to  me  to  be  the  strongest  that  the 
Water  Supply  Company  advances.  But  inasmuch  as 
there  has  been  no  epidemic  of  water  borne  diseases 
in  the  watershed,  and  few  cases  of  typhoid  fever, 


77 


one  of  the  two  testified  to,  at  a distance  from  the 
river,  and  the  other  properly  cared  for,  the  argu- 
ment derived  from  an  absence  of  epidemic  in  Jer- 
sey City  is  somewhat  weakened.  The  reservoir  as 
a safe  instrumentality  of  purification  has  not  been 
put  to  the  test.  Indeed,  one  of  the  controverted 
questions  in  the  case  is  whether  an  apparently 
slight  increase  in  the  death  rate  is  not  attribut- 
able, at  least,  to  one  of  those  cases,  they  being 
nearly  concident  in  point  of  time.  ^ 

There  is  nothing  in  Mr.  Sherrerd’s  evidence 
that  throws  additional  light  upon  the  contro- 
verted points.  He  merely  says  that  no  one  denies 
that  long  time  storage  tends  to  improve  the  qual- 
ity of  the  water  and  is  an  effective  way  of  im- 
proving it.  He  also  says  that  some  tables  pre- 
pared by  Dr.  McLaughlin,  which  he  had  seen  but 
which  are  not  identified,  indicate  a low  bacterial 
count  and  show  a water  of  uniform  quality  with, 
as  a rule,  less  than  100  bacteria  per  c.  c.  What 
the  tables  produced  in  evidence  show  has  already 
been  considered.  Such  of  his  evidence  as  is  based 
upon  tables,  if  any,  not  put  in  evidence,  cannot  be 
regarded  as  satisfactory  proof. 

I now  come  to  the  testimony  given  on  behalf  of 
complainants.  Mr.  Whipple  says  that  his  tests 
show  that  the  water  as  delivered  to  Jersey  City  is, 
to  some  extent,  contaminated  but  in  a lesser  degree 
than  it  is  in  the  river  ; that,  judging  from  all  he 
knows  of  the  situation,  it  is  not  at  all  times  pure  30 
and  wholesome.  Of  all  the  experts  in  the  case,  with 
the  exception  of  Dr.  Leal,  Mr.  Whipple  made 
the  most  exhaustive  examination  of  the  condi- 
tions surrounding  the  supply.  He  visited  all  parts 
of  the  watershed  and  advised  as  to  the  abatement 
of  many  of  the  sources  of  pollution. 

Prof.  Winslow  is  another  witness.  He  says : 

“ From  my  analyses  (made  in  December,  1906,  and 
March,  1907)  of  the  water  entering  the  reservoirs 


78 


at  Jersey  City  (the  two  small  ones  on  Jersey  City 
Heights)  from  my  knowledge  of  the  watershed 
of  the  Rockaway  River,  and  from  my  previous 
experience  in  water  analyses  and  in  the  study  of 
watersheds,  I conclude  that  the  water  at  the  inlet 
of  the  reservoirs  (i.  e.  in  Jersey  City)  at  the  time 
at  which  I examined  it  varied  considerably  in 
quality  ; that  at  times  it  showed  no  evidence  of 
pollution,  but  that  at  other  times  it  showed  dis- 
tinct and  conclusive  evidence  of  pollution.  At 
certain  of  those  times  it  was  not  pure  and  whole- 
some * * * free  from  pollution  dele- 

terious for  drinking  and  domestic  purposes.  I 
base  that  opinion  first  on  the  presence  of  an  ex- 
cessive number  of  bacteria  on  gelatine,  which 
probably  indicates  the  presence  of  sewage  pollu- 
tion, and  second  on  the  presence  of  large  numbers 
of  colon  bacilli,  which,  in  my  judgment  and  under 
the  circumstances,  indicated  with  certainty  the 
presence  of  excreta  in  the  water.  * * * 

In  my  examination  I found,  for  example,  in  the 
afternoon  of  December  26th,  that  there  were  less 
than  200  bacteria  per  cubic  centimeter,  and  I got 
b.  coli  from  neither  reservoir  at  one  cubic  centi- 
meter, and  I believe  that  the  water  at  that  moment 
was  of  good  quality.  But  on  the  morning  of 
March  20th,  I got  more  bacteria  and  I found  b. 
coli  in  both  reservoirs  in  one-tenth  of  a cubic  cen- 
timeter, which  was  conclusive  evidence  to  my 
2Q  mind  that  at  that  time  there  was  pollution  in  the 
water.” 

This  evidence  strongly  illustrates  the  danger  of 
resorting  to  averages.  Neither  Dr.  Leal  nor  Dr. 
McLaughlin  nor  Dr.  Johnson  would  pretend,  as- 
suming Prof.  Winslow’s  analyses  to  have  been 
accurately  made,  and  there  is  absolutely  no  attack 
made  either  upon  his  methods  or  his  competency, 
that  those  of  his  analyses  which  showed  700 
bacteria  (in  other  instances  1,000  and  1,200)  and  b. 


79 


coli  present  in  one-tenth  of  a cubic  centimeter 
indicated  water  of  good  quality.  Hence  the 
necessity  of  taking  refuge  in  averages. 

Professor  Sedgwick  made  no  analyses  himself. 

His  attention  was  directed  to  those  of  Dr.  Mc- 
Laughlin. He  is  asked  to  express  his  opinion  upon 
their  result.  He  says,  “I  don’t  feel  competent 
from  these  alone  to  give  a positive  opinion  as  to 
the  quality  of  the  water  at  all  times  and  in  all 
seasons,  because  I do  not  think  there  are  enough  of  ^ 
them  ; but  so  far  as  they  go,  they  show  that  a 
good  deal  of  the  time  the  water  was  in  fair  sani- 
tary condition.  The  number  of  bacteria  at  large 
are  frequently  larger  than  is  desirable  in  a good 
water  supply  and  the  occasional  occurrence  of 
baccillus  coli  in  one  cubic  centimeter  is  to  be 
regarded  as  throwing  suspicion  on  the  water, 
although  a single  analysis  does  not  necessarily 
condemn  a water.  But  to  return  to  what  I said  at 
the  beginning  of  my  answer,  I do  not  feel  that 
these  are  either  frequent  enough  or  numerous 
enough  to  enable  one  to  speak  with  certainty  as  to 
the  good  quality  of  the  water  and  as  far  as  they  go 
they  seem  to  me  rather  to  throw  suspicion  on  the 
quality  of  the  water.”  This  is  his  inference 
drawn  from  the  McLaughlin  analysis  alone.  Then 
he  goes  on  to  say  that  he  would  rely  upon  four 
things  in  order  to  determine  the  quality  of  water. 

“ First,  upon  the  state  of  the  watershed,  in  order 
to  see  whether  the  water  is, or  is  not  contaminated  ; 39 

second,  upon  a consideration  of  any  means  of  puri- 
fication, partial  or  complete,  to  which  it  may  be 
subjected  before  reaching  the  consumer  ; third, 
upon  its  sanitary  effect  upon  the  people  using  it  ; 
fourth,  upon  analytical  data.  “ I believe  that  an 
opinion  as  to  the  quality  of  the  water  ought  to  be 
founded  upon  all  these  data  taken  together.  ” He 
then  states  that  he  considers  the  water  as  it  flows 
into  the  Boonton  reservoir  to  be  at  times  highly 
impure  and  unwholesome.  After  testifying  that 


he  had  seen  and  examined  the  Whipple  report  as 
well  as  the  McLaughlin  and  Winslow  analyses,  he 
is  asked  this  question  : 

Q.  “ From  all  those  data  and  from  your  own 
knowledge  of  the  watershed  and  from  the  typhoid 
records,  what  do  you  say  as  to  the  water  as  de- 
livered at  that  point  (the  end  of  the  aqueduct  at 
Jersey  City)  being  at  all  times  pure  and  whole- 
some ?” 

IQ  A.  “ Taking  into  account  my  knowledge  of  condi- 
tions on  the  watershed  of  the  Boonton  reservoir 
and  of  the  analytical  results  obtained  at  various 
points  on  the  system  and  in  Jersey  City,  as  well  as 
the  records  of  deaths  from  typhoid  fever,  I believe 
that  the  water  as  delivered  into  the  reservoirs  at 
Jersey  City  is  not  at  all  times  pure  and  wholesome, 
but  sometimes  deleterious  for  drinking  and  do- 
mestic purposes.” 

After  stating  that  he  has  studied  the  subject 
9q  of  sedimentation  and  of  the  efficiency  of  the 
Boonton  reservoir  as  a sedimentation  basin  he 
says,  “ Taking  into  consideration  the  contours  of 
the  reservoir  bottom  as  shown  on  the  map  of  Mr. 
Ferris  (the  City  Engineer)  and  also  taking  into 
consideration  the  float  experiments,  the  distance 
from  the  mouth  of  the  Rockaway  river  to  the  out- 
let and  my  general  knowledge  of  the  behavior  of 
water  in  reservoirs,  I have  no  doubt  that  at  times 
impure  water  may  be  carried  from  the  mouth  of 
30  the  Rockaway  river  where  it  empties  into  the 
Boonton  reservoir  to  the  reservoir  in  Jersey  City.  ” 

Mr.  Kiuchling  is  another  expert  witness.  He 
says  he  does  not  regard  the  Boonton  reservoir  as 
a reliable  and  efficient  purifying  mechanism  ; that 
its  efficiency  will  be  greatly  reduced  in  times  of 
freshet  accompanied  by  winds  tending  to  accel- 
erate the  motion  of  the  water  from  the  mouth  of 
the  river  -toward  the  dam  and  gate  house  ; that  it 
will  be  less  efficient  when  fifty  millions  of  gallons 


81 


are  drawn  out  than  it  is  now  when  thirty-five  or 
thirty-six  millions  are  being  drawn,  and  that  in 
times  of  drought  and  consequent  low  water  fol- 
lowed by  freshet  its  efficiency  would  be  at  its 
minimum. 

Such  is  the  evidence  of  the  principal  witnesses 
on  the  question  whether  the  contractor  has  com- 
plied with  his  contract  obligation  to  so  construct 
the  works  that  “ they  shall  be  delivered  to  Jersey 
City  as  a completed  operating  plant,  free  from  pol-  ^ 
lution  ” and  “ so  prepared  as  to  prevent  all  con- 
tamination from  any  source  ” of  “ the  pure  and 
wholesome  water  ” to  be  furnished.  I think  the 
weight  of  the  evidence  is  that  while  much  has  been 
done  toward  securing  the  end  in  view,  the  works 
are  not  yet  “ so  prepared  as  to  prevent  all  contami- 
nation from  any  source.” 

What,  then,  is  the  position  of  Jersey  City? 
Notwithstanding  its  contention  on  this  branch  of 
the  case,  it  asks  a specific  performance  of  the  con- 
tract.  While  its  allegation  is  that  “ the  defend- 
ants cannot  convey  and  deliver  to  your  orator  a 
completed  operating  plant  free  from  pollution  be- 
cause polluted  matter  passes  into  the  water  supply 
from  the  following  places  * * * d.  from 

the  Hibernian  mines,  e.  from  the  Hibernian  vil- 
lage * * j.  from  the  Town  of  Dover,” 

and  that  “no  intercepting  sewer  has  been  built  at 
Boonton  and  no  sewage  disposal  plant  has  been 
built  at  Dover,”  yet  the  relief  that  it  prays  is,  that  g^ 
defendants  may  be  decreed  to  convey,  on  payment 
of  such  part  of  the  consideration  contracted  for  as 
this  Court  may  ascertain  to  be  due.  It  is  quite 
within  the  power  of  the  Court  to  decree  perform- 
ance with  an  abatement  in  the  price  for  that  part 
of  the  thing  bargained  for  which  the  vendor  is 
unable  to  convey,  and  so  its  prayer  is  not  inconsist- 
ent with  its  allegations. 

The  purification  of  the  water  could  be  effected 
by  means  of  a filter  plant.  To  construct  it  and  to 


82 


convey  the  filtered  water  to  Jersey  City,  at  the 
head  contracted  for,  would  involve  great  expense. 
It  would  have  been  so  important  a part  of  the 
scheme  that  had  it  been  contemplated,  it  would, 
naturally,  have  been  mentioned  in  the  agreement. 
The  bill  does  not  pray  for  any  deduction  grounded 
upon  its  absence.  It  may,  therefore,  be  dismissed 
from  consideration  unless  the  evidence  shows  that 
it  is  indispensably  necessary  to  a complete  per- 
formance  of  defendants'  contract  obligation.  I do 
not  think  it  does.  Some  of  the  pollution  com- 
plained of  has  been  stopped.  A very  considerable 
improvement  in  the  case  of  the  Lyondale  Print 
Works  and  of  Mount  Tabor  has  taken  place.  Con- 
ditions have  been  improved  at  Dover  and  Hibernia 
and  in  the  factories  on  the  Cooper-Lord  estate  at 
Boonton.  The  position  of  these  factories  in  the 
gorge,  at  and  below  the  falls  of  the  Rockaway,  is 
unfortunate,  but  the  City  contracted  in  full  view 
of  the  situation  and  is  not  in  a position  to  complain 
^ of  it.  It  is  a situation  that  will  call  for  constant 
vigilance  in  the  future. 

DOVER. 

Dover  and  Hibernia  seem  to  present  the  greatest 
difficulties.  There  is  this  provision  in  the  cohtract 
“ Eighth.  It  is  further  understood  and  agreed  that 
all  sewers  and  sewage  disposal  works  constructed 
0q  or  arranged  for  by  the  contractor  to  prevent  pollu- 
tion or  to  carry  off  pollution  existing  in  the  water- 
shed shall,  under  said  specification  and  plans,  be 
so  constructed  and  arranged  for  by  him  that  in  the 
event  of  the  purchase  of  the  water  supply  -and 
plant  by  Jersey  City  under  any  of  the  options 
aforesaid,  the  operation  and  maintenance  of  such 
sewers  and  sewage  disposal  works  for  the  purposes 
aforesaid  shall  not  be  a charge  upon  or  expense  to 
Jersey  City."  This  clause  is  so  worded  that  there 
is  no  express  agreement  to  build  sewage  disposal 


83 


works,  but  under  the  provisions  of  the  first  para- 
graph which  provide  that  the  contractor  shall  so 
construct  and  maintain  the  works  that  the  water 
delivered  therefrom  shall  be  pure  and  wholesome 
and  that  if  such  works  and  supply  are  purchased 
they  shall  be  delivered  to  the  City  “ as  a completed 
operating  plant  free  from  pollution  as  aforesaid.” 

I think  it  is  clear  that  the  Company  must  con- 
struct disposal  works  if  they  are  necessary  to  in- 
sure the  purity  of  the  water  supply.  It  cannot  be  ^ 
said  of  them,  as  it  can  be  of  a filter  plant,  that 
they  were  not  within  the  contemplation  of  the 
parties.  They  are  expressly  mentioned  in  the  con- 
tract itself  as  works  that  may  have  to  be  built. 

There  can  be  no  doubt,  under  the  evidence,  that 
it  was  represented  to  officials  of  the  City  that  such 
works  would  be  constructed.  Mr.  Ringle,  one  of 
the  Board  of  Finance,  says  that  during  the  pro- 
gress of  the  negotiations  he  and  other  members  of 
the  Board  of  Finance  and  of  the  Board  of  Street 
and  Water  Commissioners  went  to  Dover  on  a tour 
of  inspection,  and  that  they  were  informed  by 
Flynn’s  agent  that  if  the  contract  was  awarded  to 
him  they  were  going  to  build  sewers  and  sewage 
disposal  works  at  Dover.  Mr.  Hoos,  then  Mayor 
of  the  City,  testifies  to  the  same  effect.  Mr,  Mid- 
lige,  a member  of  the  bar  and  at  that  time  a mem- 
ber of  the  Board  of  Finance,  says  that  he  stated  to 
Mr.  Edwards,  Flynn’s  counsel,  and  to  Mr.  Connolly 
that  under  no  circumstances  would  he,  as  a mem-  30 
ber  of  the  Board,  vote  for  a contract  that  did  not 
provide  in  an  absolutely  complete  measure  for 
the  pollution  that  would  arise  in  the  towns 
of  Dover  and  Powerville  and  through  that  section 
of  country  from  which  the  supply  would  be  taken, 
and  that  Mr.  Edwards  and  Mr.  Connelly  both 
stated  that  a sewage  disposal  works  was  to  be  con- 
structed and  cared  for  by  the  towns  that  lay 
within  its  territory.  Mr.  Nolan  says  that  on  one 
of  his  tours,  as  a member  of  the  Street  and  Water 


84 


Board,  he  was  told  that  “ there  would  be  a disposal 
works  at  Dover  carried  on  a level  plain  outside  of 
Dover  and  the  solids  to  be  used  for  manure  and 
the  liquid  to  be  run  into  the  river  clear  and  pure.” 
While  these  extracts  from  the  evidence  shows  that 
no  definite  plan  had  then  been  agreed  upon  or 
even  matured,  they,  at  least,  indicate  that  disposal 
works  of  some  sort  were  promised.  The  evidence, 
of  course,  does  not  extend  the  .contract  obligation, 
IQ  but  it  certainly  shows  that  the  clause  was  inserted 
after  due  consideration  and  at  a time  when  the 
contractor  himself  thought  that  the  works  would 
have  to  be  built. 

Many  witnesses  were  called  on  both  sides  to 
show  the  condition  of  affairs  in  Dover.  While  the 
trial  was  progressing  the  diligence  of  the  city's 
witnesses  led  to  the  discovery  of  several  cesspools 
and  polluted  drains  which  discharged  their  con- 
tents into  the  river.  Where  the  proof  was  clear, 
the  evil  was  corrected  by  the  agents  of  the  Water 
Company.  Much  of  the  evidence  has,  for  this 
reason,  become  unimportant  except  in  so  far  as  it 
shows  the  extreme  difficulty  of  adequately  protect- 
ing the  river  as  it  flows  through  Dover,  under  ex- 
isting conditions.  There  are  no  sewers  there.  Each 
house  is  provided  with  a cesspool.  Many  of  these 
cesspools  are  built  up  with  boulder  stones,  unce- 
mented. The  contents  leach  into  the  surrounding 
soil  which  is,  in  large  part,  a low  gravelly  plain, 
3Q  characterized  by  Mr.  Jenkins  as  glacial  and  easily 
permeable  with  water.  The  gravel  goes  down  to  a 
depth  of  ten  feet  or  more  until  it  strikes  a hard 
pan  “ made  up  very  thickly  with  gravel  and  bould- 
ers.” In  this  gravel  the  water  rises  and  falls 
as  the  river  rises  and  falls.  Mr.  Sickley,  a 
contractor,  says  he  has  noticed  this  rise  and 
fall  700  feet  from  the  river.  He  says,  more- 
over, that  the  cesspools  that  he  built  clean  them- 
selves. Some  of  the  land  is  flooded  in  times  of 
freshet.  There  are  drains  in  different  parts  of  the 


85 


town,  generally  covered,  which  occupy  the  sites  of 
ancient  brooks  and  still  receive  some  of  their 
waters. 

Now  one  of  the  controverted  questions  in  the 
cause  is  as  to  the  extent  to  which,  and  under  what 
circumstances,  water  is  purified  by  flowing  through 
soil.  It  is  agreed  that  sand  is  a better  purifier 
than  coarse  gravel.  In  a situation  such  as  exists 
at  Dover,  Prof.  Winslow  says  it  would  be  a miracle 
if  some  of  the  foecal  matter  did  not  reach  the 
river.  In  the  case  of  a much  closer  grained  soil 
than  that  in  Dover,  Mr.  Kiuchling  says  that  the 
New  York  State  Board  of  Health  requires  cess- 
pools to  be  maintained  at  a distance  of  at  least 
fifty  feet  from  the  stream.  In  this  soil  he  thinks 
they  should  not  be  permitted  at  less  than  a distance 
of  one  hundred  feet.  He  says  there  are  a number 
of  cases  on  record  where  the  public  water  supply 
has  caused  an  epidemic  of  typhoid  due  to  infected 
matter  passing  through  permeable  soil.  Prof. 
Sedgwick  says  that  fifty  feet  is  the  distance  de- 
manded by  the  State  Board  of  Health  of  Massa- 
chusetts in  the  case  of  all  streams  which 
there  contribute  to  a water  supply.  Many 
cesspools  in  Dover  are  less  than  this  dis- 
tance from  the  stream.  Considering  the  sit- 
uation' I should  say  that  with  the  exercise 
of  even  unusual  vigilance  it  would  be  practically 
impossible  to  keep  all  the  sewage  of  Dover  out  of 
the  river.  Not  only  will  it  percolate  through  the 
coarse  gravel  or  be  carried  to  the  river  over  low- 
lying  land  in  times  of  flood,  but  there  will  be  a 
constant  temptation  to  get  rid  of  it  by  means  of 
secret  drain  connections.  If  proof  of  this  were 
needed  it  would  be  found  in  the  testimony  already 
alluded  to  relating  to  the  discovery  of  pipes  con- 
necting cesspools  with  the  river  or  with  drains 
leading  into  it,  and  this,  after  Dr.  Leal  had 
been  exerting  all  his  vigilance  to  stop  it,  for  sev- 
eral years.  The  report  of  Mr.  Whipple  shows  that 


10 


20 


30 


i 


86 


in  the  water  above  Dover  he  found  an  average  of 
1825  bacteria,  while  in  the  water  below  he  found 
an  average  of  29,614.  Of  course,  much  of  this  may 
have  been  street  wash. 

The  construction  of  a disposal  works  would  re- 
quire the  co-operation  of  the  municipality  of 
Dover.  Neither  the  Water  Company  nor  Jersey 
City  itself  would  have  the  right  to  enter  upon  its 
streets  and  lay  pipes  therein.  Much  less  would 
^ they  have  authority  to  compel  the  householders  to 
connect  their  closets  and  cesspools  with  those 
pipes.  But  it  does  not  appear  that  the  Water 
Company  has  sought  the  co-operation  of  Dover  in 
this  matter.  On  the  conirary,  their  position  now 
is  that  such  a work  is  not  necessary.  I am  unable 
to  concur  in  this  view,  unless  such  works  would 
do  more  harm  than  good. 

This  brings  me  to  defendants'  next  contention. 
They  say  that  to  concentrate  the  sewage  of  Dover 
Q and  to  discharge  it  into  the  river  at  a single  point, 
^ only  partially  purified,  would  result  in  a greater 
amount  of  pollution  than  now  exists.  Their 
position  is  this.  As  matters  now  stand,  each  house 
has  its  own  cesspool.  The  fluid  matters  which  find 
their  way  out  of  the  cesspool  are  quickly  purified 
by  the  natural  soil  acting  as  a filter.  Very  little, 
either  by  occassional  surface  inundation  in  times 
of  freshet  or  by  percolation,  finds  its  way  into  the 
the  river.  If  any  water  coming  from  the  cess- 
30  pools  reaches  the  stream,  it  has  become  purified  on 
its  passage  thither.  Consequently  the  pollution, 
if  any,  thereby  resulting  is  less  than  that  that 
would  result  from  the  discharge  of  partly  purified 
water  coming  from  sewage  disposal  works. 

Dr.  Johnson,  on  behalf  of  the  Company,  thus 
testifies  on  this  subject : 

“Q.  In  your  opinion  would  the  building  of 
sewers  in  unsewered  towns  such  as  Dover  in  such  a 
watershed  effectually  prevent  pollution  or  infec- 
t/on of  the  water  ? 


87 


“A.  That  would  depend  on  the  point  of  discharge. 

“Q.  Supposing  they  discharged  above  the  reser- 
voir ? 

“A.  Then  it  would  most  certainly  not  prevent 
pollution.  On  the  other  hand,  it  would  increase 
the  danger,  because  of  the  concentration  of  the 
polluting  matter  at  one  point.” 

It  will  be  noticed  that  Dr.  Johnson  is  asked 
only  whether  the  present  system  would  not  be 
preferable  to  one  which  would  cast  the  entire  ^ 
sewage  of  Dover,  unpurified,  into  the  stream  be- 
low the  town.  There  could  be  but  one  answer  to 
such  a question.  It  is  significant  that  counsel  for 
the  Company  did  not  see  fit  to  ask  this  witness  as 
to  the  effect  of  a sewage  disposal  works,  although 
he  was  an  expert  on  the  subject. 

Dr.  Leal  expresses  an  opiniom  upon  the  very 
question  in  the  following  words  : “ In  my  opinion 
there  would  be  more  danger  of  infection  of  the 
water  supply  with  the  sewage  system  and  purifica- 
tion’plant  than  under  present  conditions,  for  this  ^ 
reason:  There  is  a certain  amount — I believe  the 
principal  pollution  today  of  the  Rockaway  River 
comes  from  the  streets  of  towns,  country  roads 
and  manured  fields.  * * * You  are 

going  to  have  that  just  the  same  if  you  have 
your  sewage  system  because  no  sane  man  today 
would  put  in  the  combined  system.  * * * 

To  the  best  of  my  knowledge  and  belief  today  there 
is  no  direct  foecal  pollution  of  the  river,  that 
is,  I don't  believe  there  is  any  pipe  carrying 
foecal  matter,  or  I don't  believe  any  foecal 
matter  gets  into  the  Rockaway  river  unless  some- 
body uses  the  banks,  which  cannot  be  prevented  , 
and  the  only  possible  foecal  matter  which  can  get 
into  the  river  today  is  either  through  percolation 
or  through  flowing  over  the  ground.  Now  that  is 
a very  small  proportion  of  the  total  foecal  sewage 
of  Dover — a very  small  proportion.  * 


* Now,  you  are  going  to  bring  in  all  this  mat- 
ter all  together  to  one  point,  that  is,  you  are  going 
to  connect  houses  which  cannot  pollute  the  river 
or  its  tributaries,  bring  their  sewage  right  to  one 
point  and  you  are  going  to  keep  it  all  there.  You 
are  going  to  purify  it.  Well,  if  you  purify  it  up 
to  95  per  cent,  you  are  doing  pretty  well  and  you 
will  be  lucky  to  get  that.  It  will  be  nearer  ninety. 
That  means  that  there  is  ten  per  cent  that  goes 
into  the  river.  Now,  I believe  that  ten  percent,  is 
a great  deal  more  than  goes  into  the  river  today. 
I don't  believe  that  there  is  one  or  a half  per  cent, 
that  goes  into  the  river  today." 

Now,  this  is  a very  strong  presentation  of  the 
case.  If  the  premises  were  well  founded  it  would 
be  difficult  to  resist  Dr.  Leal's  conclusion.  I am 
inclined  to  think  that  Dr.  Leal  takes  too  favorable 
a view  of  the  conditions  prevailing  in  Dover.  He 
overlooks,  or  rather  does  not  give  sufficient  weight 
to,  the  consideration  that  people  sometimes  neglect 
to  empty  their  cesspools  when  full;  that  they 
dump  their  contents  in  places  where  they  ought 
not  to;  that  freshets  may  occur  in  this  low  valley 
which  will  overflow  the  cesspools  in  parts  of  the 
town;  that  the  soil  being  a coarse  gravel  is  easily 
permeable  by  water;  that  there  will  be  a constant 
temptation  to  connect,  secretly,  the  closets  and 
cesspools  with  the  covered  drains  that  carry  off  the 
surface  water,  and  that  even  with  vigilant  outside 
supervision  the  agents  of  Jersey  City  will  not  be 
allowed  to  enter  private  dwellings  and  other  build- 
ings merely  with  a view  to  secure  evidence.  In 
theory,  resort  may  be  had  to  the  injunction  process 
of  this  court.  In  practice,  this  resort  would,  per- 
haps be  ineffective,  because  of  the  difficulty  and 
delay  in  obtaining  proof  such  as  the  court  could 
act  upon. 

Dr.  Herold  in  a qualified  way  agrees  with  Dr. 
Leal.  He  says,  with  a 'properly  supervised  system , 


89 


privies  would  be  less  likely  to  pollute  the  water 
supply  than  a disposal  works.  He  says,  however, 
that  sewage  disposal  works  are  satisfactory  where 
the  soil  is  proper  and  that  the  percentage  of  puri- 
fication ordinarily  obtained  by  these  works  is  not 
over  ninety  per  cent.  Then  he  indicates  what  he 
means  by  a properly  supervised  system.  “ I mean 
that  it  must  be  policed  and  there  must  be  some 
one  to  go  over  the  shed  at  all  times  and  see  that 
there  are  no  privy  vaults  that  are  flowing — no  cess- 
pools that  are  overflowing,  and  the  condition  of  the  10 
property  on  the  banks  of  the  river  must  be  kept 
free  of  polluting  organic  material.”  If  Dover 
itself  were  being  supplied  with  the  water  for 
drinking  purposes  and  its  citizens,  therefore,  in- 
terested in  having  their  supply  pure,  it  is  easy  to 
suppose  that  effective  ordinances  would  be  passed 
to  regulate  the  use  of  cesspools,  drains  and  sewers, 
and  that  its  police  and  health  agents  would  be  vig- 
ilant in  enforcing  them,  and  that  they  would 
have  the  good  will  of  the  entire  community  in  do-  20 
ing  so. 

This,  I imagine,  is  the  sort  of  supervision  that 
Dr.  Herold  would  think  necessary.  It  can  hardly 
be  supposed  that  the  agents  of  a distant  munici- 
pality, particuarly  if  they  should  perform  their 
duties  with  any  degree  of  vigor,  would  stand  on  a 
similar  vantage  ground.  Friction  and  even  hostility 
would  be  the  natural  results  of  any  attempted 
interference  by  one  municipality  with  the  internal 
arrangements  of  another.  “A  properly  supervised 
system ,”  to  use  Dr.  Herold’s  words,  could  hardly 
be  expected. 

On  the  other  hand,  the  complainant’s  experts 
say  that  within  a very  few  years  sewer  pollution 
works  have  been  so  far  perfected  that  the  polluted 
water  passing  through  them  is  or  may  be  so  com- 
pletely purified  that  it  can  even  be  drunk  with  im- 
punity. Prof.  Winslow  says,  “ Practice  in  sewage 
disposal  has  reached  such  a stage  in  the  last  few 


90 


years  that  we  can  obtain  any  result  that  we 
choose.  If  it  is  desired  to  produce  an  effluent 
organically  pure,  but  not  purified  from  bacteria, 
that  can  be  done  chiefly.  If,  on  the  other  hand,  it 
is  designed  to  produce  an  effluent  of  such  a qual- 
ity that  it  can  be  turned  into  a drinking  water 
supply  with  impunity  that  can  also  be  done.  ” 

Prof.  Sedgwick  testifies  that  he  observed  some 
evidences  of  attention  to  privies  but  no  arrange- 
ments for  cemented  ones  carefully  emptied  by 
those  in  charge  of  the  water  supply , such  as  are 
found  on  the  Metropolitan  Water  Supply  of  Bos- 
ton, nor  any  placards  forbidding  the  pollution  of 
the  stream.  He  says  further,  “ I did  not  observe 
any  sewage  disposal  plant  such  as  in  my  judgment 
ought  to  exist  in  the  city  of  Dover,  if  the  water 
of  the  Rockaway  river  is  to  be  used  as  a source  of 
supply  for  the  Boonton  reservoir.  * * * 

I believe  that  the  sewage  disposal  plant  is  vastly 
preferable  (‘  to  the  situation  as  it  there  is  ’)  and 
that  it  would  be  a much  safer  arrrangement.” 

Mr.  Kuichling  says  that  it  is  possible  to  pre- 
vent substantially  the  Dover  contamination  from 
entering  the  Rockaway,  and  he  estimates  the 
cost  of  a sewage  disposal  works  at  $105,000. 

Taking  into  account  all  the  testimony,  it  seems 
to  resolve  itself  into  a matter  of  expense.  The 
purification  effected  by  the  disposal  works  to 
which  Dr.  Leal  referred  was,  no  doubt,  partial. 

2Q  There  is  nothing  in  the  case  to  throw  doubt  upon 
the  evidence  of  Professor  Winslow  to  the  effect 
that  if  the  proper  methods  be  adopted  the  water 
can  be  purified  to  such  an  extent  as  to  render 
the  effluent  harmless.  Naturally,  the  Company 
does  not  wish  to  incur  this  expense,  but  if  it  be 
necessary,  in  order  to  conform  to  the  terms  of 
their  contract  to  furnish  pure  and  wholesome 
water,  the  matter  of  expense  is,  from  a legal 
standpoint,  irrelevant.  I think  that  the  weight  of 
the  evidence  is  that  the  river,  as  it  passes  through 


91 


Dover,  is  very  considerably  polluted  ; that  freshets 
may  increase  the  danger  and  that  a properly  con- 
structed disposal  works,  properly  managed,  would 
be  a considerable  safeguard.  It  is  no  answer  to 
this  to  assert  that  the  works  might  be  carelessly 
managed  and  that  the  risk  of  pollution  would  then 
be  greater.  If  it  can  be  assumed  that  in  a matter 
so  vital  to  the  health  of  the  City  there  would  be 
mismanagement  • of  the  works,  the  same  assump- 
tion would  have  to  be  made  in  reference  to  the 
supervision  of  Dover  by  Jersey  City  officials  under 
present  conditions.  Such  an  assumption  would  be 
fatal  to  Dr.  Leaks  contention,  for  he  admits  that 
the  situation,  as  it  is  today,  is  one  requiring  cease- 
less vigilance.  Only  because  of  that  vigilance, 
which  he  says  is  now  being  exercised  by  himself  and 
his  subordinates,  is  the  water  supply,  in  his  esti- 
mation, safe.  Assuming  that  the  same  degree  of 
vigilance  would  be  exercised  by  the  City  with  ref- 
erence to  its  disposal  works,  that  is  now  being  ex- 
ercised  by  the  Water  Company,  whose  manage- 
ment is  itself  the  subject  of  criticism  by  Prof.  Sedg- 
wick in  the  extract  from  his  testimony  that  I have 
before  quoted,  then  I think  the  weight  of  the  evi- 
dence shows  that  disposal  works  would  afford 
added  protection.  If  I had  thought  that  the  evidence 
did  not  sppport  that  view,  I should  have  been 
forced  to  the  conclusion  that  a filter  plant  should 
be  provided  in  order  to  satisfy  the  paramount  con- 
tract obligation  to  furnish  pure  and  wholesome  30 
water. 

HIBERNIA. 

I now  come  to  Hibernia.  Here,  too,  I think 
conditions  are  unsatisfactory.  The  hamlet  is  thus 
described  by  Mr.  Kiuchling:  “ The  village  or  set- 
tlement of  Hibernia  is  essentially  a mining  camp. 

It  contains  numerous  small  houses  occupied  by  the 
miners  and  there  are  about  1,200  to  1,500  people 


92 


there.  Of  that  number,  from  1,000  to  1,200  work 
under  ground  in  the  mines  during  the  day.  While 
they  are  underground  their  wastes  mingle  with 
the  mine  drainage  water  which  is  pumped  to  the 
surface  and  flows  into  the  brook  that  runs  through 
this  little  settlement  or  village.  This  village  is  in 
a narrow  valley  with  steep  hillsides.  These  houses 
are  not  of  a high  class  of  construction.  They  have, 
many  of  them,  privies  adjacent  to  runways  for 
water— what  would  be  called  a water  course  or 
depression  in  the  ground  not  containing  running 
water.  Some  are  only  running  brooks  and 
rivulets.  Pig  pens  and  hen  coops  and  stable 
yards  generally  are  located  so  that  the  drainage 
flows  off  readily.  The  water  in  the  Hibernia 
brook  is  discolored  and  visibly  and  palpably  pol- 
luted, both  from  what  surface  water  there  is  as 
well  as  from  the  mine  drainage.  One  of  the  mines 
delivers  water  that  is  as  discolored  and  opaque  as 
almost  any  city  sewage.  From  another,  the  water 
comes  out  clear.  In  this  latter  case  the  water  is 
used  for  condensing  the  steam  of  the  mine  en- 
gine, the  hoisting  engine  at  the  surface.  In  the 
other  case  it  cannot  be  so  used  because  it  is  too 
dirty  for  that  purpose.  I am  informed  by  the 
superintendent  at  the  time,  access  to  the  same 
having  been  refused,  that  there  are  no  sanitary 
conveniences  for  the  miners  underground/' 

The  brook  here  spoken  of  flows  into  Beaver 
3Q  Brook  which  flows  into  the  river  just  below  Rock- 
away  village,  at  a point  about  eight  miles  above  the 
reservoir,  if  measured  along  the  stream,  or  about 
four  miles  and  a half  in  an  air  line. 

The  description  of  the  village  as  above  given  is 
not  controverted.  The  defendants  called  Mr. 
Munson,  the  mine  superintendent.  He  admits 
that  there  is  a moderate  descent  from  all  the 
houses  toward  the  brook.  Of  the  surface,  he  says 
“ it  is  a rather  rocky  surface,  in  fact."  The  privy 
vaults  are  formed  by  digging  down  in  the  soil 


93 


which,  in  the  valley,  is  loose  stone.  He  says  that 
at  the  suggestion  of  Dr.  Leal  and  Dr.  Herold  and 
by  the  direction  of  the  mine  owners  he  took  down 
an  old  mining  house  and  that  where  the  vaults 
were  filled,  or  nearly  so,  they  dug  new  ones,  built 
of  loose  stone,  uncemented  ; that  as  to  the  mines 
themselves,  the  men  use  as  a substitute  for  privies 
old  abandoned  levels,  and  that  if  the  men  are 
known  to  go  elsewhere  they  are  discharged.  He 
also  says  the  men  drink  the  mine  water  and  that 
he  has  never  known  of  a case  of  typhoid  fever 
there.  Commenting  on  the  condition  of  affairs. 

Dr.  Leal  says  that  the  superintendent  described 
the  conditions  exactly  ; that  he  would  only  state 
that  there  is  no  direct  contamination  of  the^brook  ; 
that  where  the  privies  were  too  near  they 
were  moved  back  (he  does  not  say  how  far),  and 
that  some  of  the  houses  have  been  pulled  down. 

He  adds,  “ I regard  it  in  as  good  a condition  as  it  is 
possible  to  get  such  a place.  It  is  only  a mining- 
camp  and  there  is  no  pollution.  The  only  pollu-  ^0 
tion  that  there  can  be  is  by  washing  over  the  sur- 
face.” Being  asked  why,  if  an  epidemic  should 
break  out,  the  germs  would  not  be  washed  over 
the  surface  down  into  the  brook  and  from  thence 
into  the  reservoir,  he  says,  “that  is  possible. 

And  it  is  possible  of  any  place  in  the  water- 
shed, or  any  single  house  in  the  watershed. 

I would  state  that  a case  of  typhoid  fever  has 
never  been  known  in  Hibernia  and  that  the  privy  ^ 
vaults  are  in  fair  condition,  so  that  even  if  there 
was  a case  or  two,  or  three,  there  would  be  no 
practical  danger.  Such  a thing  is  not  likely  to 
happen,  but  the  possibility  cannot  be  denied  for  a 
moment.”  As  to  this,  Mr.  Whipple  says,  “ If  a 
case  of  typhoid  fever  should  occur  and  the  dis- 
charge of  the  basins  enter  the  privy,  it  would  be 
somewhat  surprising  if,  through  the  agency  of 
flies,  the  infection  was  not  transferred  to  some 
other  house  or  some  other  patients,  or  some  other 


94 


of  the  population  there,  and  it  would  be  a very  easy 
matter  for  a severe  epidemic  to  sweep  through 
such  a settlement  as  there  exists.  The  conditions 
would  be  somewhat  analagous  to  the  conditions  in 
some  of  the  military  camps  of  our  soldiers  during 
the  Spanish  war  where  typhoid  fever  did  break 

OUt.” 

Now,  taking  into  consideration  the  class  of  per- 
sons inhabiting  this  camp  ; their  utter  ignorance 
q of  sanitary  rules,  the  absence  of  police  and  sani- 
tary supervision,  the  lay  of  the  land  and  the  char- 
acter of  the  soil  through  or  over  which  polluted 
liquids  might  flow  into  the  brook,  and  the  admit- 
ted fact  that  the  waters  of  the  brook  are  to  some 
extent  polluted  at  all  times,  it  seems  to  me  plain 
that  if  even  a slight  epidemic  of  water  borne  dis- 
ease should  break  out  and  some  of  the  germs  of 
disease  be,  as  they  would  be  likely  to  be,  washed 
into  the  brook,  they  would  quickly  reach  the  river 
and  then  it  would  be  merely  a question  of  condi- 
20  tions  in  the  reservoir  whether  they  would  or  would 
not  settle  or  die  before  they  passed  into  the  efflu- 
ent pipes  at  the  gate  house. 

As  I have  said  before,  Jersey  City  is  entitled 
under  its  contract  to  an  efficient  mechanism  for 
purifying  the  water  and  there  is  no  contrivance  in 
the  mechanism  as  constructed  to  guard  against  the 
dangers  of  Hibernia  brook.  Kiuchling  estimates 
that  the  total  cost  of  pollution  works,  including  a 
2q  capital  sum  which  at  five  per  cent,  would  produce 
$900  a year  for  operating  expenses,  would  be 
$46,000. 


MOUNT  TABOR. 

Mount  Tabor  is  a summer  camping  ground.  It 
lies  about  a mile  and  a quarter  south  of  the  river. 
There  is  a brook  rising  to  the  north  of  the  hamlet 
which  flows  into  it.  Here  Mr.  Whipple  found 
sanitary  conditions  very  much  better  than  they 


were  in  Hibernia.  No  sewer  system,  but  on  the 
other  hand,  “ no  open  privies,  or  only  a few.” 
These  as  I understand  it  do  not  drain  naturally 
into  the  brook.  The  specific  complaint,  as  appears 
from  the  testimony  of  Mr.  Kuichling,  is  that  the 
contents  of  the  cesspools  when  emptied  are 
dumped  upon  or  near  manure  heaps  within  a 
hundred  feet  or  less  of  a water  course  or  ditch, 
which  finds  its  way  into  the  brook.  Dr.  Herold  says 
that  there  is  no  possibility  of  foecal  matter  getting 
into  the  stream,  which  is  400  feet  away  ; that  the 
course  of  the  polluted  water  is  away  from  it  and 
that  under  existing  conditions  he  cannot  conceive 
of  contamination  or  menace  of  contamination 
from  this  source.  It  appears  to  me  that  on  the 
evidence  nothing  appears  but  the  risk  which  is  in- 
curred from  taking  a water  supply  from  a densely 
populated  watershed  and  which  Jersey  City  as- 
sumed when  she  entered  into  the  contract.  The 
situation,  too,  is  such  that  it  is  easily  controllable. 

BOONTON  DRAIN. 

The  next  question  that  I shall  consider  is  the 
Boonton  intercepting  sewer  or  drain.  It  is  agreed 
on  both  sides  that  such  a drain  or  sewer  is  neces- 
sary. Boonton  is  built  on  the  steep  sides  of  a hill 
which  to  the  west  slopes  toward  the  river.  The  de- 
fendants say  that  they  have  provided  an  open 
drain  on  the  property  of  the  Morris  Canal  and  Bank- 
ing Company.  It  is  at  present  unnecessary  to  re- 
view the  evidence  bearing  upon  the  question 
whether  it  is  sufficient.  It  seems  to  be  admitted 
that  the  Water  Company  has  nothing  but  a license 
to  maintain  it  and  it  does  not  appear  that  this  li- 
cense is  irrevocable.  Until  a better  title  is  shown, 
I think  that  the  Company  has  not  discharged  its 
obligation. 


9G 


THE  RAG  MILL  AT  POWERVILLE. 

There  is  a considerable  amount  of  evidence  re- 
lating to  this  mill.  It  lies  from  one  and  a half  to 
two  miles  above  the  reservoir  and  formerly  dis- 
charged a large  amount  of  wastage  into  the  stream 
of  such  a character  as  to  attract  to  it  especial 
notice.  The  bill  charges  that  the  defendants  are 
under  contract  to  “ eliminate  ” it.  The  defendants 
deny  any  such  obligation  and  say  that  it  is  no 
lb  longer  a nuisance. 

First,  as  to  the  legal  question.  It  appears  that 
the  officials  of  Jersey  City  had  during  their  tours 
of  inspection  seen  this  mill  and  that  they  thought 
it  very  objectionable.  Prior  to  the  signing  of  the 
contract  of  February  28,  1899,  Mr.  Edwards,  who 
was  acting  as  counsel  for  the  contractor,  addressed 
this  letter  to  the  Mayor:  “ Jersey  City,  Jan’y  6, 
1899.  Hon.  Edward  Hoos,  Mayor,  Jersey  City. 
My  Dear  Sir.  When  the  sewer  inspection  was 
20  made  of  the  Rockaway  watershed  under  the 
pending  proposal  to  my  client  Patrick  H.  Flynn  to 
furnish  a new  water  supply  to  Jersey  City,  atten- 
tion was  called  by  his  engineers  to  the  rag  factory 
at  Powerville  as  among  the  possible  sources  of 
pollution.  You  were  then  told  that  it  was  the 
intention  of  the  contractor  to  remove  the  same, 
although  no  specific  mention  had  been  made  of 
this  place  in  the  specification  or  the  proposal.  I 
beg  to  assure  you  that  such  removal  has  always 
been  contemplated  in  our  plans  and  that  if  the 
contract  is  awarded  to  him  such  removal  must 
take  place.  Yours  respectfully,  Wm.  D.  Edwards, 
P.  H.  Flynn.” 

The  letter  as  originally  written  was  signed  only 
by  Mr.  Edwards  but  when  the  contract  was  ready 
for  signature  Mayor  Hoos  refused  to  sign  it  unless 
Flynn  also  signed  the  letter.  This,  after  some 
little  demur,  he  did  and  then  Hoos  signed  the  con- 
tract. The  Water  Company’s  position  is  that  the 


97 


letter  not  being  a part  of  the  formal  contract  is 
not  binding  upon  it.  There  is  other  testimony 
upon  upon  the  subject  but  I shall  here  only  refer 
to  that  of  Mr.  William  H.  Corbin,  which  is  the  most 
favorable  to  the  defendants'  contention.  He 
says  that  in  a conversation  between  representatives 
of  the  City  and  of  the  Water  Company,  shortly 
before  the  Water  Company  undertook  Flynn's 
obligations,  reference  was  made  (inter  alia)  to  Mr. 
Edwards’  promise  to  remove  the  rag  mill 
and  that  Mr.  Gardner,  the  president  of 
the  Company,  said  that  he  had  examined  the 
written  contracts  and  specifications  with  great 
care  and  had  made  estimates  upon  them  and  if  the 
parties  he  represented  were  to  undertake  the  work 
at  all,  it  would  be  on  the  basis  of  those  written 
contracts  and  if  there  were  any  other  understand- 
ings outside  of  those  contracts  by  anybody  he 
would  have  nothing  to  do  with  them  and  the  nego- 
tiations might  as  well  stop  because  those  he  repre- 
sented  would  not  undertake  any  contracts  modi- 
fied in  any  such  way.  To  this  Mr.  Record,  repre- 
senting the  city,  replied  that  of  course  was  so,  and 
if  the  Security  Company  and  the  East  Jersey  Water 
Company  came  in  they  would,  of  course,  be  held  to 
what  the  written  contracts  required  and  the  city 
would  not  accept  (require  ?)  anything  else.  He  says 
the  subject  dropped  there  and  nobody  again  re- 
ferred to  the  matter. 

In  this  conversation  the  reference  was  not  alone  30 
to  the  rag  mill  but  also  to  disposal  works  and 
other  subjects  on  which  the  parties  even  then 
seen  to  have  differed.  I will  assume  that  it  was 
understood  by  both  sides  that  the  Water  Company, 
if  it  undertook  the  work,  would  be  bound  by  the 
written  contract  and  by  that  only.  What,  then, 
was  the  written  contract  ? It  is  elementary  that  a 
- contract  may  be  contained  in  more  than  one  writ- 
ing. If  several  papers  are  executed  at  the  same 


98 


time  as  parts  of  one  transaction,  they,  together, 
constitute  the  contract. 

The  formal  contract  expressly  declares  that  its 
provisions  shall  bind  the  assigns  of  Flynn  and  that 
the  specifications  shall,  and  proposals  are  made 
part  of  it.  The  specifications  contain  this  clause  : 
“The  advertisement,  the  specifications,  the  ac- 
cepted proposals  and  all  maps,  plans  and  drawings 
accompanying,  attached  to  or  described  therein, 
the  specific  contract  and  the  contractor’s  bond  are 
to  be  considered  essential  portions  of  the  complete 
contract.”  Now  it  seems  to  me  that  the  undertak- 
ing contained  in  the  Edwards-Ftynn  letter  was  a 
proposal  of  Flynn  accepted  by  the  City  and  there- 
fore one  of  the  accepted  proposals  mentioned  in 
the  above  clause.  It  conclusively  appears  from 
Mr.  Corbin’s  testimony  that  the  Water  Company 
had  notice  of  it.  As  it  was  agreed  on  all  hands 
that  the  writings  were  to  be  regarded  as  declaring 
the  extent  of  the  Company’s  liability  and  as  this 
20  was  one  of  them  it  bound  the  Company  just  as  any 
other  writing  did. 

But  this  does  not  solve  the  question  presented. 
The  evidence  shows  that  acting  under  the  sug- 
gestion of  Dr.  Leal,  who  told  them  that  they 
were  throwing  away  that  which  could  be  utilized, 
the  proprietors  of  the  mill  stopped  pouring  their 
waste  into  the  river.  It  is  no  longer  a menace  in 
any  other  sense  than  any  factory  along  the  river 
2Q  bank  having  wastage  to  deal  with  is.  There  is 
always  a possibility  that  the  desire  to  get  rid  of  it 
in  the  easiest  and  cheapest  way,  or  carelessness  or 
disobedience  of  orders  may  result  fn  pollution. 
But  there  is  no  law  that  forbids  the  establishment 
of  factories  along  streams  used  for  a water 
supply.  If  the  rag  mill  is  now  objectionable, 
so  are  the  factories  along  the  river  bank  in 
Dover,  Rockaway  and  Boonton.  The  agreement 
contained  in  the  letter  is  to  “ remove  ” the 
mill.  It  is  possible  that  the  Water  Company  could 


99 


purchase  it  at  such  a price  as  the  owners  might 
see  fit  to  ask  for  it,  but  it  may  be  doubted  whether 
it  could  be  condemned  as  a whole  if  it  could  not  be 
shown  to  be  a nuisance.  I have  no  doubt  that  Jer- 
sey City  may  condemn  a strip  of  land  along  the 
river  banks  for  the  purpose  of  preserving  the  pur- 
ity of  its  water  supply.  I think  it  could  condemn 
a strip  of  suitable  width  for  the  purpose  of  guard- 
ing that  supply,  without  any  proof  of  present 
nuisance,  but  I should  doubt  whether  it  could  con- 
demn a factory  property  in  its  entirety  extending 
back  a considerable  distance  from  the  stream 
merely  because  it  was  a factory  property  situate 
on  the  river. 

Assuming,  then,  that  the  letter  of  the  promise 
has  been  broken,  what  is  the  consequence?  The 
removal  of  the  mill  was  stipulated  for  that  the 
purity  of  the  supply  might  be  conserved.  If  the 
City  gets  a supply  free  from  the  pollution  caused 
by  the  operation  of  the  works  in  an  objectionable 
way,  the  substantial  object  has  been  attained  ; the  ^0 
abatement  of  the  nuisance  has  been  effected. 
Even  if  the  owners  should  consent  to  sell,  they 
might  take  the  money,  establish  themselves  any- 
where else  along  the  river  and  continue  the  same 
business  in  the  same  way  that  they  are  now  con- 
ducting it.  Jersey  City  would  be  powerless  to 
object  unless  they  should  begin  to  pollute  it  again. 
According  to  his  promise,  Flynn  was  obliged  to 
remove  the  factory.  Suppose  he  purchased  it,  ^ 
there  is  nothing  in  the  contract  that  would  have 
obliged  him  to  convey  it  to  the  City.  Why,  then, 
should  the  City  have  the  price  or  value  of  this  fac- 
tory deducted  from  the  price  of  the  works?  I am 
of  the  opinion  that  relief  in  respect  of  this  should 
be  denied. 

I have  now  reviewed  the  principal  sources  of 
pollution  mentioned  in  the  bill.  I do  not  think  it 
necessary  to  notice  in  detail  any  of  the  others. 

The  evidence  does  not  satisfy  me  that  they  are  at 


100 


present  polluting  the  stream.  If  they  shall  do  so 
in  the  future  they  may  be  enjoined  on  the  very 
salutary  principle  established  in  State  Board  of 
Health  v.  Diamond  Paper  Mills,  18  Dick.,  Ill ; on 
App.,  19  Dick.,  793  ; a case  which  decides  that  the 
prohibition  is  against  putting  any  polluting  mat- 
ter into  any  stream  or  tributary  which  furnishes  a 
water  supply  at  any  point  whatever  above  the 
point  at  which  the  supply  is  taken,  and  without 
any  reference  to  the  question  whether  the  stream 
appears  to  be  or  is  in  fact  polluted  at  the  point  of 
intake. 

I may  add  that  I am  very  strongly  impressed 
with  the  conviction  that,  in  view  of  the  conditions 
prevailing  on  this  populated  watershed,  Jersey 
City  ought,  at  the  earliest  opportunity,  to  secure 
as  much  of  the  river  banks  as  possible  in  those 
districts  where  the  population  is  still  inconsid- 
erable and  the  land  cheap. 

20  WATCHUNG  TUNNEL. 

I shall  now  consider  some  objections  of  a differ- 
ent character.  The  Watchung  tunnel  is  thus  re- 
ferred to  in  the  bill : The  defendants  cannot  con- 
vey the  works  as  provided  in  the  contract  “ be- 
cause in  constructing  a tunnel  through  the 
Watchung  Mountain  the  defendants  adopted  a 
method  of  construction  which  was  cheaper  than 
that  required  by  the  contract.  That  your  orator 

30  is  entitled  to  an  abatement  of  the  consideration  of 
the  contract  to  the  extent  of  the  amount  saved  by 
the  defendants  in  constructing  their  tunnel  in  a 
manner  different  from  that  required  by  the  con- 
tract.”  In  what  this  difference  consists  the  bill 
does  not  state.  In  the  testimony,  however,  it  is 
said  to  lie  in  the  fact  that  the  contractor  has  furn- 
nished  a gravel  and  not  a concrete  bottom.  To  the 
bottom  thus  provided  two  objections  are  made,  viz.: 
(1)  that  because  of  the  added  friction  the  flow  oi 


101 


water  is  slightly  less,  and  (2)  that  it  is  harder  to 
clean.  Both  of  these  objections  are  substantial,  if 
valid.  The  question,  then,  is  whether  the  bottom, 
as  constructed,  conforms  to  the  contract.  The 
specification  reads  as  follows  : “ where  the  tunnel 
is  in  rock,  if  the  bottom  consists  in  sound  and  solid 
rock,  it  may  be  levelled  up  and  smoothed  and  made 
uniform  throughout  with  Rosendale  cement  con- 
crete, surfaced  with  a layer  two  inches  thick  of 
Portland  cement  mortar.  Where  the  tunnel  is  ^ 
in  earth  or  unsound  rock,  a brick  invert  six- 
teen inches  thick  shall  be  laid  at  the  bottom 
If  it  shall  be  necessary  in  order  to  secure  a firm 
foundation,  the  invert  shall  be  laid  upon  a bed  of 
concrete.”  If  this  were  the  only  provision  on  the 
subject  I should  say  that  having  regard  to  the  em- 
ployment of  the  word  ‘ may  ’ in  the  first  part  of 
clause,  and  the  word  ‘ shall  ’ in  the  latter  part,  it 
was  open  to  the  contractor  to  resort  to  any  per- 
missible mode  of  tunnel  construction  where  sound 
and  solid  rock  was  encountered,  subject,  however, 
to  the  limitation  found  in  the  paragraph  headed 
“ Inspection”:  “Any  workmanship  or  material 
not  mentioned  or  described,  which  may  be  neces- 
sary to  make  the  works  constructed  complete 
and  in  all  respects  of  the  best  quality  and  effic- 
iency shall  be  furnished  and  performed  by  the 
contractor  as  fully  and  thoroughly  as  if  the  full 
details  and  specifications  therefor  had  been  given 
therein.”  Now,  as  to  the  method  of  construction  ^0 
adopted.  Mr.  Kuichling  says  that  in  no  water 
works  conduit  that  he  knows  of  is  there  a gravel 
bottom.  Without,  apparently,  denying  the  state- 
ment in  this  form,  Mr.  Gardner  says  that  the  job 
is  as  good  and  serviceable  a one  as  if  it  had  been 
built  with  a concrete  bottom  and  Mr.  Waldo  Smith 
says  that  it  (I  suppose  he  refers  to  the  invert) 
has  been  done  in  a proper  way  and  that  it  is  a 
good  engineering  structure.  Mr.  Hering  does  not 
express  any  opinion.  From  this  testimony,  I 


102 


should  infer  that  in  the  absence  of  contract  stipu- 
lations to  the  contrary,  the  mode  of  construc- 
tion actually  adopted  was,  from  an  engineering 
standpoint,  permissible.  I should  doubt  whether 
it  was  “ of  the  best  quality  and  efficiency.”  But 
there  are  two  other  clauses  which  bear  upon  the 
matter.  First,  the  last  part  of  the  section  that  re- 
lates to  tunnels  : “ Care  shall  be  taken  to  leave  the 
interior  surface  of  the  tunnel  smooth  and  free 
from  projections  ; ” and,  second,  the  clause  of 
plan  No.  1,  contained  in  the  proposals  : “ Thence 
through  Watchung  Mountain  by  a tunnel,  brick 
lined , having  an  inside  diameter  equal  to  6.85 
feet.”  All  three  clauses  must  be  read  together. 
So  reading  them  we  have  this  : “ The  tunnel  is  to 
be  brick  lined,  but  where  the  bottom  consists  of 
sound  and  solid  rock  it  may  be  levelled  up  and 
smoothed  and  made  uniform  throughout  with 
Rosendale  cement  and  Portland  cement  mortar. 
In  any  case,  care  shall  be  taken  to  leave  the  in- 
20  terior  surface  smooth  and  free  from  projections.” 
Now  it  seems  to  me  that  it  is  perfectly  plain,  in 
view  of  these  provisions,  that  the  only  permissible 
departure  from  a brick  lining  throughout  is,  under 
the  conditions  named,  a substitution  of  cement 
and  mortar.  A gravel  construction  is  excluded. 

But  it  is  argued  that  the  tunnel  furnished  is  as 
good  and  serviceable  as  a tunnel  of  brick  or 
cement.  The  evidence  is  that  because  of  the  an- 
ticipated  increase  in  friction,  the  horizontal  and 
vertical  diameters  of  the  tunnel  were  enlarged  two 
or  three  inches.  The  weight  of  the  evidence 
(which  is  conflicting  on  this  point)  seems  to  be 
that  this  allowance  is  sufficient,  but  assuming  that 
the  tunnel  as  built  will  allow  of  the  passage  of 
seventy  millions  of  gallons,  in  the  manner  stip- 
ulated, viz.,  so  that  “ the  upper  surface  of  the 
water  shall  be  one  foot  from  the  top  of  the  arch,  ” 
the  defendants  are  still  met  by  the  difficulty  that 
they  have  not  performed  their  contract  according 


103 


to  its  terms  and  that  this  mode  of  construction  will 
make  it  more  difficult  and  expensive  to  clean  the 
bottom  and  free  it  from  such  vegetable  and  animal 
growths  as  are  often,  if  not  always,  found  in  tun- 
nels used  for  a similar  purpose.  The  objection  is 
not  fanciful  and  the  City  did  not  acquiesce  in  the 
mode  of  construction  adopted  ; on  the  contrary,  as 
soon  as  the  Company  had  submitted  its  amended 
plan  to  Mr.  Ferris,  as  by  the  contract  it  was  re- 
quired to  do,  he,  under  date  of  January  16,  1904, 
wrote  to  Mr.  Harrison,  the  company’s  engineer, 
stating  that  he  rejected  the  modified  plans  as  not 
conforming  to  the  specifications  “ inasmuch  as  the 
surface  of  the  invert  you  propose  will  not  be 
smooth  and  free  from  projections.”  Notwith- 
standing this  rejection,  the  company  went  on  in 
their  own  way. 

Mr.  Gardner  testifies  that  they  could  not  lay  the 
cement  because  of  the  volume  of  water  flowing- 
through  the  bottom.  By  this  statement  he  can 
mean  only  that  they  could  not  do  it  without  going 
to  the  additional  expense  of  putting  in  an  under 
drain.  But  if  this  were  necessary  in  order  to  en- 
able the  Company  to  perform  the  contract  accord- 
ing to  its  terms,  they  would  be  obliged  to  make 
such  an  under  drain. 

The  City  has  elected  to  take  the  works.  The 
case,  therefore,  comes  within  the  rule  laid  down 
in  Bozarth  v.  Dudley,  15  Vr.,  304,  and  Feeny  v. 
Bardsley,  37  Vr.,  240.  In  this  last  case,  Justice  30 
Van  Syckle,  speaking  for  the  Court  of  Errors, 
approved  the  following  direction  : “ If  the  con- 

tractor has  substantially  performed  his  contract, 
even  though  he  has  failed  to  do  so  in  some  minor 
particulars,  he  is  entitled  to  recover  the  contract 
price,  less  what  will  be  a fair  allowance  to  the 
owner  to  make  good  the  defects  in  the  performance 
of  the  contract.”  This  rule  seems  applicable  to 
the  case  in  hand.  The  evidence  is  that  the  differ- 


104 


enee  between  the  cost  of  a concrete  bottom  and  a 
gravel  one  is  $18,500. 

DAM  NO.  1. 

The  City's  next  contention  is  that  the  main  dam, 
while  properly  constructed  to  retain  a supply  of 
fifty  millions  of  gallons  for  the  requisite  number 
of  days,  has  not  been  constructed  in  such  a way  as 
that,  by  simply  building  on  top  of  it,  it  may  be 
10  raised  so  as  to  provide  for  a supply  of  seventy 
millions. 

The  defendants'  contention  is  that  the  contract 
does  not  oblige  it  to  do  anything  more  than  con- 
struct a dam  which  shall  hold  back  the  fifty  mil- 
lion gallons  supply.  It  appears  to  me  that  the  de- 
fendants' contention,  in  this  respect,  is  correct. 

The  specifications  contain  this  clause  : “ Bidders 
must  also  state  a price  for  which  the  City  can 
buy  and  own  the  water  works  of  the  capacity  of 
20  fifty  (50)  million  gallons  daily,  together  with  the 
water  supply,  water  rights,  lands,  reservoir  sites, 
rights  of  way  and  all  assessments  necessary  to 
fulfill  the  requirements  of  this  specification  and  to 
the  extent  of  seventy  (70)  million  gallons  daily." 
In  compliance  with  this  specification,  the  proposal 
was  as  follows  : “ For  the  water  works  and  all 

appurtenances  thereof  necessary  to  fulfill  the  re- 
quirements of  these  specifications  to  the  extent 
of  fifty  million  gallons  of  water  daily,  together 
30  with  ihe  water  supply,  water  rights,  lands,  reser- 
voir sites*,  rights  of  way  and  all  assessments  neces- 
sary to  fulfill  the  requirements  of  these  specifi- 
cations and  to  the  extent  of  seventy  million  gal- 
lons of  water  daily  forever,  which  purchase  can 
be  made  by  the  City  when  the  water  works  are 
completed  and  accepted  hereunder,  provided  the 
City  shall  give  notice  of  its  intention  to  purchase 
within  one  year  after  the  date  of  contract,"  &c. 


105 


In  these  two  clauses  a very  sharp  distinction  is 
drawn  between  the  works  necessary  to  provide  a 
supply  of  fifty  millions  of  gallons  and  the  water 
supply,  water  rights,  lands,  sites,  &c.,  necessary  to 
enable  the  possessor,  at  some  period  in  the  future, 
to  enlarge  the  supply  to  seventy  millions.  Coun- 
sel has  not  been  able  to  point  to  a single  clause  in 
any  of  the  writings  which  go  to  make  up  the  con- 
tract, which  requires  that  in  the  construction  of 
the  dam,  work  must  be  done,  not  for  the  purpose  ^ 
of  providing  a fifty  million  gallon  supply,  but 
for  the  purpose  of  partially  providing"  for  a sev- 
enty million  gallon  one.  Failing  to  find*  any  such 
provision  in  the  writings,  the  City  falls  back  upon 
a correspondence  between  Mr.  Ferris,  City  en- 
gineer, and  Mr.  Harrison,  the  Company’s  engi- 
neer, relative  to  the  Parsippany  Dyke — a distinct 
structure  in  another  part  of  the  reservoir— the 
result  of  which  was  that  the  company  agreed  to 
the  City’s  position  in  relation  to  that  structure. 

A perusal  of  Mr.  Ferris’  letter,  found  on  page 
157,  shows  that  the  situation  in  regard 
to  the  dyke  differed  considerably  from  that 
at  the  dam.  Mr.  Ferris  shows  that  the 
dyke  could  not  have  been  raised  to  the  70  million 
gallon  level  if  constructed  as  Mr.  Harrison  was 
then  proposing  to  construct  it.  The  core  wall 
would  then  have  been  in  the  wrong  place  and  if 
an  additional  dyke  with  another  core  wall  were  to 
be  constructed,  the  new  work,  in  view  of  the  3Q 
necessary  excavations,  would  have  imperiled  the 
safety  of  the  original  dyke.  Such,  at  least,  was 
Mr.  Ferris’  contention.  Now  it  may  well  be  that 
the  contractor  was  obliged  to  so  construct  the 
res^voir  intended  in  the  first  instance  for  a 50 
million  gallon  supply,  that  the  structure  could, 
without  imperiling  that  supply,  be  adapted  to  a 70 
million  supply.  At  all  events,  Mr.  Ferris’  repre- 
sentations on  this  head  were  so  positive  and  so 


106 


plausible  that  the  Water  Company  gave  in  to 
them.  But  these  considerations  do  not  apply  to 
the  face  of  the  dam.  It  is  the  opinion  of  all  the 
engineers  that  that  face  may  be  thickened  and 
strengthened  on  its  lower  or  outer  side  with- 
out at  all  interfering  with  the  work  of 
the  reservoir.  Mr.  Kuichling  himself  testi- 
fies as  follows : “ I will  say,  to  thicken  the 

dam  as  built  to  an  equivalent  strength  that 
^ it  would  have  to  be,  if  built  originally  to  the 
greater  additional  thickness,  would  require  more 
masonry  and  it  might  possibly  be  done  with  a little 
more  than  the  same  masonry,  but  at  very  much 
larger  additional  cost, because  the  union  between  the 
old  and  new  masonry  must  be  made  in  expensive 
manner,  therefore  there  would  be  a question  of  the 
value  of  the  additional  work  as  compared  with  the 
additional  masonry.  ” I need  not  multiply  quo- 
tations, for  this  is  the  statement  of  the  City's  ex- 
pert. The  increased  cost  is  perfectly  irrelevant  if 
the  contract  itself  did  not  require  more  than  a dam 
capable  of  containing  the  fifty  million  gallon  sup- 
ply. The  only  clause  in  all  the  writings  to  which 
counsel  has  been  able  to  point  is  that  which 
relates  to  raising  the  dam  in  the  event  that 
the  City  should,  during  the  term  of  the  contract, 
notify  the  contractor  to  increase  the  capacity  of 
his  works.  This  notification  was  never  given. 
On  the  contrary,  the  City  elected  to  purchase. 
3Q  Consequently,  the  clause  has  no  relevancy  to  the 
present  discussion  even  if  it  could  be  constructed 
to  mean  that  the  contractor  was  merely  to  put  his 
material  nowhere  else  than  on  top  of  the  present 
dam,  a construction  that  not  only  seems  to  be  inad- 
missible in  itself,  but  was  never  contended  for  by 
Mr.  Ferris,  so  far  as  the  dam  is  concerned. 

There  is  besides  absolutely  nothing  in  the  con- 
tract which  indicates  that  the  City,  if  it  wished  to 
increase  the  supply,  might  not  think  it  better  to 


107 


censtruct  an  independent  reservoir,  for  example, 
in  the  Longwood  Valley,  or  in  some  other  locality 
above  Dover  where  the  water  would  be  less  ex- 
posed to  contamination.  The  construction  of  two 
or  more  reservoirs  is  not  only  usual  in  the  case  of 
a large  city,  but  commendable.  The  contract  it- 
self contemplates  the  possibility  of  such  a thing. 
From  whatever  point  of  view  the  matter  is  con- 
sidered, there  is  absolutely  nothing  that  suggests 
an  obligation  to  do  more  than  provide  a dam  suit-  ^ 
able  for  a fifty  million  gallon  supply. 

THE  MORRIS  CANAL  AND  BANKING  CO. 

I shall  not  attempt  under  this  head  to  do  any- 
thing more  than  outline  the  objection  to  the  title 
of  the  Jersey  City  Water  Supply  Company  founded 
upon  the  claim  of  the  Morris  Canal  Company,  of 
a prior  right  to  the  flow  of  the  Rockaway  above 
Boonton.  .The  city  takes  a position  with  regard  to 
this  claim  which  seems  to  be  quite  inconsistent  with  ^0 
its  status  as  party  complainant  praying  for  a 
specific  performance.  It  seeks  in  the  same  breath 
to  have  the  contract  performed  and  repudiated. 

Briefly  outlined,  the  facts  are  these  : By  the 
original  contract  of  February  28,  1899,  Flynn  con- 
tracted to  give  “ the  whole  flow  of  the  Rockaway 
river  having  a watershed  and  gatering  grounds  of 
122J  square  miles.”  On  April  24,  1901,  Messrs. 
Corbin  & Corbin  addressed  a letter  to  the  Jersey 
City  Boards  in  which  they  stated  that  the  Canal 
Company  had  the  first  right  to  use  the  waters  of 
the  river  and  that  Jersey  City  could  obtain  from 
the  watershed,  “only  such  waters  as  remain  after 
the  needs  of  the  canal  are  supplied,  such  needs 
being  necessarily  variable  fram  year  to  year." 

In  view  of  this  claim,  Flynn  having  (with  others) 
failed  to  secure  legislative  consent  to  the  aband- 
onment of  the  Morris  canal,  procured  an  act  of 
Legislature,  approved  March  22,  1902,  (p.  1.  416) 


108 


in  which  it  was  provided  that  it  should  be  lawful 
for  the  Board  having  charge  of  the  water  supply 
and  the  Board  having  charge  of  the  finances  of  any 
municipality  to  modify  by  resolution  the  terms  of 
any  contract  heretofore  or  hereafter  made  by  such 
municipality  for  the  construction  and  purchase 
of  a new  water  supply  “as  to  area  of  the  water 
shed  or  the  proportion  of  the  flow  of  any  river  or 
stream  tributary  thereto,  or  the  capacity  of  the 
storage  reservoirs  thereof,  whenever,  in  the  judg- 
ment of  said  Boards,  such  modifications  are  needed 
to  ensure  the  construction  of  the  works,  * * 

provided  such  modification  shall  not  relieve  the 
contractor  or  his  sureties  from  furnishing  and 
delivering  to  the  municipality  the  quantity  and 
quality  of  water  required  by  the  original  contract.” 

Pursuant  to  this  act,  the  coirtract  of  July  8, 1901, 
was  made  between  the  City,  Flynn  and  the  Water 
Supply  Company.  It  recites  the  claim  of  the 
Morris  Canal  and  provides  (inter  alia)  that  in  case, 
20  upon  the  completion  and  acceptance  of  the  works, 
the  claims  of  the  Morris  Canal  Company  and  its 
lessee  shall  not  have  been  released  or  extinguished 
it  shall  be  entitled  to  retain  out  of  the  purchase 
prize  of  $7,595,000,  the  sum  of  $500,000,  until  the 
happening  of  one  of  three  events,  (1)  a decision  of 
the  highest  court  of  New  Jersey  adverse  to  the 
claim  ; (2)  the  delivery  of  a valid  release  from  the 
Canal  Company  ; (3)  the  abandonment  under  legis- 
oq  lative  sanction  of  the  portion  of  the  canal  lying  be- 
tween Dover  and  Montville,  and  the  surrender  of 
its  right  to  divert.  This  supplemental  contract 
and  two  others  dated  March  31,  1902,  conferred 
valuable  rights  upon  Jersey  City  and  under  them 
and  under  the  original  contract,  so  far  as  it  re- 
mained unmodified,  the  Water  Company,  taking 
an  assignment  from  Flynn,  went  on  and  con- 
structed the  works. 

The  City  now  contends  that  the  contract  of 
July  8,  1901,  was  not  warranted  by  the  act  of 


109 


March  22,  1901,  and  that  (a)  in  the  language  of  the 
bill,  the  defendants  cannot  convey  the  whole  of 
said  works,  (b)  because  the  defendants  have  not 
acquired  the  rights  of  the  Morris  Canal  to  divert 
water  from  the  water  supply  about  the  reservoir 
at  Boonton — that  company  claiming  vto  have  a 
right  to  divert  such  water  to  such  an  extent  as 
will  prevent  the  defendants  from  furnishing  the 
amount  of  water  required  by  the  contract. 

While  the  City  is  not,  apparently,  satisfied  with  ^ 
the  contract  deduction  of  $500,000,  it  wants  speci- 
fic performance  with  an  undefined  and,  I think,  I 
may  add,  an  unascertainable,  additional  deduction 
from  the  contract  price  on  account  of  the  Canal 
Company’s  claim, — which,  however,  both  it  and 
the  Water  Company  dispute. 

There  is  such  a thing  in  equity  as  a deduction 
from  the  price  stipulated,  because  of  the  inability 
of  the  vendor  to  give  all  that  he  has  contracted  to 
give,  but  here  the  claim  is  that  this  Court  shall,  in 
the  absence  of  mistake,  the  parties  having  con- 
tracted exactly  as  they  intended  to  contract,  first, 
change  the  contract  to  the  disadvantage  of  the 
Water  Company,  and  then  in  its  changed  form 
compel  them  to  perform  it.  If  the  Water  Company 
was  seeking  to  compel  the  City  to  take  the  works, 
Jersey  City  could  set  up  the  illegality  of  the 
contract  (if  it  was  illegal)  for  the  purpose  of 
defeating  the  suit.  It  is  not  entirely  obvious  why 
the  supplemental  agreement  is  not  authorized  by  3Q 
the  terms  of  the  act,  but  even  if  it  be  not  Jersey 
City,  as  a complainant,  is  hardly  in  a position  to 
demand  the  specific  performance  of  an  agreement 
which  it,  in  part,  repudiates.  If  it  may  repudiate, 
it  necessarily  puts  itself  out  of  court.  It  is  quite 
beyond  the  power  of  any  court  to  compel  parties 
specifically  to  perform  on  terms  what  they  have 
never  agreed  to  perform.  The  case  is  all  the 
stronger  for  the  reason  what  the  agreement  of 
July  8,  1901,  was  as  to  the  Jersey  City  Water  Co. 


the  original  agreement,  by  which  it  first  became 
bound. 

I shall  now  notice  very  briefly  one  or  two  minor 
objections. 

As  to  the  steel  pipes  : it  is  sufficient  to  say  that 
the  contract  does  not  provide  for  pipes  seventy- 
six  inches  in  diameter.  It  provides  a formula  ac- 
cording to  which  their  carrying  capacity  shall  be 
determined.  When  the  site  of  the  reservoir  was 
changed  and  a greater  head  obtained  it  was  possi- 
ble within  the  terms  of  the  contract  to  reduce 
their  size. 

As  to  the  riparian  owners  below  the  reservoir, 
their  rights  are  inconsiderable  and  most  of  them 
have  been  obtained.  It  is  admitted  that  what  re- 
mains must  be  acquired. 

The  question  of  seepage  under  the  Parsippany 
Dyke  has  been  settled. 

I think  in  view  of  the  provisions  of  the  fence 
act,  the  Water  Company  should  make  an  allow- 
ance equal  to  one-half  the  cost  of  fencing. 

I have  now  noticed  all  the  questions  raised  by 
the  bill.  If  any  others  have  been  raised  by  the 
briefs,  they  are  in  themselves  comparatively  in- 
significant and  not  within  the  issues  contained  in 
the  pleadings. 


m 


